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Grandstaff v. State (11/30/2007) ap-2127

Grandstaff v. State (11/30/2007) ap-2127

     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-8128
Appellant, ) Trial Court No. 4FA-S00-3718 CR
v. )
) O P I N I O N
Appellee. ) No. 2127 November 30, 2007
          Appeal  from the Superior Court, Fourth  Judi
          cial District, Fairbanks, Ralph R. Beistline,

          Appearances:   Michael Cohn,  Anchorage,  for
          the  Appellant.  John A. Scukanec,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Gregg  D.  Renkes, Attorney General,  Juneau,
          for  the  Appellee.   Thomas  V.  Van  Flein,
          Clapp,  Peterson  & Stowers, LLC,  Anchorage,
          for Amicus Curiae Alaska Dental Society.

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

          STEWART, Judge.

          Stephen  A.  Grandstaff  was  convicted  of  misconduct
arising  from  his  medical practice  in  Fairbanks.   The  State
charged  that  Grandstaff  manipulated vulnerable,  drug-addicted
patients to obtain sex from the patients in exchange for drugs or
drug  prescriptions.  At trial, the jury found Grandstaff  guilty
of  sexually assaulting patients, issuing prescriptions that  had
no  medical  purpose  to  those patients, and  stealing  Medicaid
          Grandstaff raises several challenges to his convictions
and his sentence.  We conclude that none of the issues raised  in
this  appeal warrants reversing any of his convictions.  We  also
reject Grandstaffs attacks on his sentence.  Therefore, we affirm
the superior courts judgment.

          Background facts and proceedings
          The   States  case  focused  on  four  women  who  were
Grandstaffs patients, S.Y., S.P., C.R., and E.S.  In  1995,  S.Y.
sought  treatment  from Grandstaff for depression,  anxiety,  and
endometriosis.   S.Y. testified to a history of  drug  addiction,
and  indicated  that  her  beginning efforts  at  drug  treatment
started in 1995 or 1996.  Other doctors had previously prescribed
pain  pills  for  her, but they stopped due to  her  drug-seeking
behavior;  S.Y.s  medical records at Grandstaffs  clinic,  Tanana
Valley  Clinic,  contained entries from other practitioners  that
indicated   she   was  not  to  be  given  any  more   narcotics.
Nevertheless, Grandstaff prescribed narcotic pain pills for her.
          At  first,  S.Y. scheduled appointments with Grandstaff
about  once  a month, but her appointments increased  to  once  a
week,  and  she went in for more pills every few  days.   As  the
frequency  of her visits and prescriptions increased through  the
summer  and  fall  of  1997, the tenor of her  relationship  with
Grandstaff  changed.   Grandstaffs jokes became  more  sexual  in
nature,   and   S.Y.s  appointments  began  to   include   pelvic
examinations.  S.Y. testified that there was rarely  a  nurse  in
the room during those examinations, and that she did not have  to
express a medical need to get more pills. Throughout this period,
her drug use increased.
          On a visit in September 1997, Grandstaff examined S.Y.s
collarbone after a minor auto accident in which she had not  been
injured.  Grandstaff moved one hand inside her shirt and  touched
her  breast, and placed his other hand between her legs.  He told
her  that you know what I want, I know what you want, and I  cant
be  giving  you  these pills for nothing.  S.Y. left  the  clinic
without  getting  any pills.   Later that day, Grandstaff  called
S.Y. at her parents house, asked how she was doing, and told  her
he had something for her.  He came by soon after with a bottle of
Percocet,  a  narcotic analgesic.  After S.Y. took  some  of  the
pills,  they went upstairs and had sex.  S.Y. testified that  the
only reason she had sex with Grandstaff was to get the pills.
          S.Y.  continued  to  see Grandstaff  because  no  other
doctor  would  prescribe  enough  pills  to  satisfy  her.   S.Y.
testified  that she told Grandstaff more than once that  she  did
not  want to have sex anymore.  She also told him that she wanted
to  enter  drug treatment, but he did nothing to help her.   S.Y.
testified that during this period she was really messed up in the
head, and she was miserable.
          On  December 12, 1997, S.Y. arranged to meet Grandstaff
at  the  Westmark Hotel across the street from his clinic.   S.Y.
testified  that  she  did not want to have  sex  with  Grandstaff
anymore,  so she asked a friend to drop by the hotel  room  while
Grandstaff  was there to scare him so that he would leave  before
they  had  sex, but after he had given her drugs.   According  to
S.Y.,  Grandstaff arrived and looked around the room,  then  left
and returned soon after with a bottle of Stadol and four Mepergan
pills,  both narcotic analgesics.  S.Y. took most of  the  Stadol
and  all of the Mepergan, which made her really fogged.  She left
to  look for her friend, then returned to the room, where she and
Grandstaff kissed a little bit before S.Y. passed out.  When S.Y.
woke up, she was naked and Grandstaff was having sex with her.
          S.Y.s mother testified that when S.Y. called home  that
night, her speech was slurred and incoherent.  S.Y.s mother  also
testified that Grandstaff called the next day, asked how S.Y. was
doing, and then hung up.
          According to S.Y.s mother, Grandstaff frequently called
S.Y.  at  her home. In April 1997, S.Y.s mother asked  Grandstaff
whether they could plan an intervention or otherwise get help for
S.Y.   Grandstaff replied that he knew what he was doing and that
S.Y.  was  an  adult.   On another occasion,  when  S.Y.s  mother
challenged   Grandstaff  about  the  amount  of  drugs   he   was
prescribing for S.Y., Grandstaff told her that she needed to back
off  and  take  care of her other children and her  granddaughter
(S.Y.s daughter).
          In  late  1997  or early 1998, S.Y. overdosed  and  was
hospitalized  at  Fairbanks Memorial  Hospital  (FMH).   She  was
treated  by Dr. Schultz, a psychiatrist, and she talked with  him
about her relationship with Grandstaff.
          In  March 1998, when S.Y. was living at the North  Star
Center  in Fairbanks, she failed a drug test administered by  the
facility and later spoke with the police.
          In  August 1998, S.Y. was interviewed by Sergeant James
Geier  of  the Fairbanks Police Department, who later became  the
chief  investigating  officer  in the  case  against  Grandstaff.
Sergeant  Geier  obtained a Glass warrant1 in February  1999  and
recorded two conversations between S.Y. and Grandstaff.   In  the
second  conversation, Grandstaff and S.Y. talked  in  person  and
Grandstaff  claimed that he did not know she was  an  addict.  He
also  stated  that he never consciously did any of  those  things
that  youre  thinking of, any of those things you  think  I  did.
When  S.Y.  asked  whether  he had been  unconscious,  Grandstaff
answered,  No,  but  I  think,  you  know,  that  we  do   things
subconsciously without realizing what were doing.  S.Y. testified
that during this conversation, Grandstaff leaned into the vehicle
and touched her on her breasts and between her legs.
          S.P.  became  a patient of Grandstaffs in the  fall  of
1996, after the doctor she had been seeing left the clinic.  S.P.
had  been  hospitalized for pneumonia, and  she  was  also  being
treated  for anxiety and depression.  S.P. testified that  before
Grandstaff treated her, she had had problems with alcohol and had
used  methamphetamine and marijuana. S.P. discussed her drug  and
alcohol problems with Grandstaff.
          S.P.  testified  that  her  initial  appointments  with
Grandstaff seemed to be normal doctor-patient contacts.  However,
          in October or November of 1996, during her third or fourth
appointment, while Grandstaff was listening with a stethoscope on
S.P.s back, he pushed up her bra, fondled and sucked her breasts,
and  licked her neck and mouth.  S.P. asked Grandstaff  to  stop.
Grandstaff  told  her  she  needed to relax.   In  later  visits,
Grandstaff placed his fingers in S.P.s vagina, made S.P.  massage
his  penis  and  testicles  until he ejaculated,  and  made  S.P.
perform fellatio on Grandstaff.
          Grandstaff  and S.P. started having sexual  intercourse
in  November  or December of 1996.  After each visit,  Grandstaff
prescribed  drugs  for  S.P. or gave  her  samples.   S.P.  would
massage Grandstaffs penis while he wrote the prescription.   S.P.
testified  that  she  could  just walk  into  Grandstaffs  office
without an appointment, and that the amount of drugs he gave  her
increased  after they started having sex.  Though the drugs  made
her  feel like a zombie, S.P. continued seeing Grandstaff because
she  wanted the drugs.  S.P. testified that Grandstaff wore tight
underwear, similar to racquetball or bicycle shorts.
          S.P.  testified that in 1998, around the  time  of  her
birthday,  she was sexually assaulted by her neighbor.   She  was
upset on her next appointment with Grandstaff, and when she  told
him  why,  he told her she would feel better if she massaged  his
penis.   During another appointment, Grandstaff entered the  exam
room quietly, signaled S.P. not to talk, and handed her a note on
a  napkin.   According to S.P., the note said that  if  she  said
anything to anyone, he would deny it because hes a doctor and  Im
the  patient, and [h]es got his career ahead of him.   After  she
read  the note, Grandstaff rinsed the note in the sink and  threw
it  away, and S.P. left without getting any drugs.  The last time
S.P.  went to see Grandstaff at the clinic, she was told  he  was
not there due to a family emergency.
          In   1998   or  1999,  after  S.Y.  recorded  the   two
conversations  with Grandstaff, S.Y. approached S.P.  at  a  Taco
Bell  because she recognized her from the pharmacy at the  clinic
building.   S.Y. told S.P. that she was a patient of Grandstaffs,
and  asked  S.P. if anything had happened with Grandstaff.   S.P.
told S.Y. that she obtained drugs by having sex with Grandstaff.
          In  March  1999,  S.P. spoke with Sergeant  Geier,  who
applied  for  another  Glass  warrant.   The  recording  of   the
conversation  between  S.P.  and  Grandstaff  failed  due  to   a
malfunction  of  the  recording  equipment,  but  Sergeant  Geier
testified that he heard Grandstaff tell S.P. she did not have  to
talk  to  the  police, but could speak with his attorney  if  she
needed  any  advice.  At some point, S.P. also told Dr.  Schultz,
the psychiatrist, about her involvement with Grandstaff.
          C.R.  was clean and sober in January 1997 when she  was
released  from prison after 3 1/2 years in custody.   Soon  after
her  release, she started seeing Grandstaff for a condition  that
caused  a  weakening of the muscles on her left side.   She  told
Grandstaff  about her criminal history and her  history  of  drug
addiction  and prostitution.  C.R. became addicted to  the  drugs
Grandstaff prescribed for her.
          C.R.   testified   that  when  Grandstaff   wrote   her
prescriptions,  she  sat in his lap, played with  his  hair,  and
rubbed  his back and leg.  Grandstaff would get that prescription
for  me  quick because he knew thats what I wanted. ...  He  knew
what I was coming for was my script.  C.R. sold some of the drugs
she  got from Grandstaff, and testified that she continued to see
him  because  she  was an addict and she had no  trouble  getting
drugs  from  him.   C.R. was hospitalized after  an  overdose  in
September  1998.   When  she  went to see  Grandstaff  after  the
overdose, he told her she could not have any more drugs.
          E.S.  was a patient of Grandstaffs from September  1995
through  August 1998.  E.S. died of a drug overdose  in  December
1999.   Her  medical  records revealed  several  serious  medical
problems,  as well as a long history of alcohol and  drug  abuse,
heroin addiction, and drug-seeking behavior.
          The grand jury returned a 105-count indictment charging
Grandstaff  with one count of first-degree sexual  assault,2  two
counts  of second-degree sexual assault,3 four counts of  second-
degree  theft,4  fifty-five  counts of  second-degree  misconduct
involving  a  controlled substance,5 and  forty-three  counts  of
fourth-degree misconduct involving a controlled substance.6
          The first-degree sexual assault charge stemmed from the
incident  involving S.Y. at the Westmark Hotel (Count  26).   The
two  second-degree  sexual assault charges  were  for  the  first
incidents  of nonconsensual sexual contact with S.Y.  (Count  25)
and  S.P. (Count 68), respectively.  The four theft charges  were
based  on  the  total amounts that Medicaid paid for illegitimate
medical  services and prescriptions for each of the  four  women.
Each  drug count corresponded with a specific prescription for  a
Schedule IA drug (second-degree misconduct involving a controlled
substance)  or  a  Schedule  IVA drug  (fourth-degree  misconduct
involving  a controlled substance) prescribed or supplied  for  a
non-medical purpose.
          Grandstaff  filed  numerous motions before  and  during
trial,  asking the court to dismiss the indictment, to sever  the
sexual  assault  counts from the drug and theft  counts,  and  to
suppress  various  evidence, including some  material  Grandstaff
argued   was   privileged.   He  also  moved  to   suppress   the
conversations  recorded pursuant to the  Glass  warrants.   These
motions  were  generally denied.  Grandstaff challenges  many  of
these rulings on appeal.
          The trial jury convicted Grandstaff of the first-degree
sexual  assault  of  S.Y. (Count 26), and  of  the  second-degree
sexual  assault of S.P. (Count 68); the jury acquitted Grandstaff
of the second-degree sexual assault of S.Y. (Count 25).  The jury
also  convicted  Grandstaff  of  the  three  second-degree  theft
charges related to S.Y., S.P., and C.R., and acquitted him of the
theft charge related to E.S.  Grandstaff was convicted of thirty-
two  counts  of  second-degree and thirty-six counts  of  fourth-
degree   misconduct   involving  a  controlled   substance,   for
prescriptions issued to S.Y., S.P., and C.R.  He was acquitted of
six  of  the drug counts related to S.P., one of the drug  counts
related to C.R., and all of the counts related to E.S.
          Grandstaff subsequently filed a motion to set aside the
judgment,  arguing  that the drug counts in the  indictment  were
fatally defective.  This motion was denied.
          During sentencing, the State presented two other  women
who  testified that Grandstaff sexually molested them while  they
were his patients.
          Superior  Court  Judge  Ralph R.  Beistline  imposed  a
composite term of 34 years with 15 years suspended, for 19  years
to serve.  Grandstaff appeals.

          Grandstaffs motion to dismiss the indictment
          Grandstaff  argues that there are several  reasons  why
Judge  Beistline should have granted his motion  to  dismiss  the
          First,  Grandstaff  claims that  the  State  failed  to
present  exculpatory evidence to the grand jury  as  required  by
Frink  v. State.7 Exculpatory evidence for purposes of  Frink  is
evidence  that tends, in and of itself, to negate the  defendants
          Grandstaff  claims  that  the  prosecutor  should  have
informed  the grand jury of several matters.   First,  Grandstaff
argues  that  the  grand jury should have known that  someone  on
behalf  of  the prosecution promised C.R. that she would  not  be
prosecuted  for  selling some of the drugs Grandstaff  prescribed
for  her,  that C.R. told a police officer that she wanted  money
before cooperating, and that C.R. told a police officer that  she
had  not  been  totally  truthful  about  her  relationship  with
Grandstaff.   Although  evidence of each of  these  circumstances
provides  potentially  useful evidence for impeachment,  none  of
those  circumstances  provides  evidence  that  tends  to  negate
Grandstaffs guilt.
          Grandstaff also argues that the prosecutor should  have
informed  the grand jury that S.Y. cooperated with the police  in
other  investigations and that S.Y. received the benefit  of  the
States  dismissal  of a petition to revoke  her  probation.   But
Grandstaff  did  not  rely on this claim in the  superior  court.
Therefore,  this  claim is waived.  Even if it  was  not  waived,
evidence of S.Y.s cooperation with the police and any benefit she
received  is  not  the  type of evidence  that  tends  to  negate
Grandstaffs guilt.
          Grandstaff  also argues that the prosecutor  improperly
prevented  S.Y. from responding to a question whether  Grandstaff
enjoyed having sex with her when she was unconscious.  Grandstaff
claims  this  evidence is exculpatory because it would  undermine
S.Y.s  testimony that she did not consent to the sexual  activity
in  the  hotel near Grandstaffs office.  But Grandstaff  did  not
raise this claim in the superior court, so it is also waived.
          Next,  Grandstaff argues that the prosecutor  presented
perjured testimony when S.Y. testified at the grand jury that she
did  not  want  to have sex with Grandstaff at  the  hotel.   But
Grandstaff  did not raise this claim in the superior court.   And
Grandstaff  interprets the record in the light most favorable  to
this  claim.   S.Y. testified at the grand jury and at trial that
she  in fact did not want to have sex with Grandstaff even though
she  hoped to lure him to the hotel with an expectation  of  sex.
She  planned to get the drugs from Grandstaff and then  have  her
          friend drop in and scare Grandstaff away before she had to engage
in  sex.   But she lost consciousness after ingesting  the  drugs
Grandstaff brought to the hotel. When she regained consciousness,
she  found that Grandstaff was engaged in sexual intercourse with
her.  Even if Grandstaff had preserved this claim, we do not read
the record as establishing perjury by S.Y.
          Next,  Grandstaff  claims Count 68  of  the  indictment
should  have  been dismissed.  Count 68 charged  Grandstaff  with
second-degree  sexual assault with S.P. between  the  approximate
dates  of  October 31, 1996 and March 31, 1997.  In the  superior
court,  Grandstaff  argued that the evidence  did  not  establish
which  of  the incidents of sexual contact described by S.P.  was
charged  in  Count  68.   But  a fair  review  of  the  testimony
establishes that S.P. was referring to the first time  Grandstaff
fondled  her.   Judge  Beistline  properly  concluded  that   the
evidence presented supported that count.
          Finally, Grandstaff argues that Judge Beistline  should
have dismissed the indictment because the State presented, to the
grand  jury,  a  report  prepared  by  Dr.  Theodore  Parran,  an
associate  clinical professor at Case Western Reserve  University
School  of Medicine in Cleveland.  The State hired Dr. Parran  to
review the treatment Grandstaff provided to S.Y., S.P., C.R., and
E.S. and determine if there appeared to be a medical purpose  for
the  treatment  he  provided  and  the  drugs  he  prescribed  or
delivered to each.  Dr. Parran prepared a report of his  findings
and the State presented the report as an exhibit before the grand
jury.  A witness read Dr. Parrans findings and conclusions.   The
prosecutor  informed the grand jury that Dr. Parran was  standing
by  to  testify  telephonically from Ohio if the grand  jury  had
questions.  The grand jury elected not to hear from Dr. Parran.
          Grandstaff  argues  that  the report  was  inadmissible
hearsay.   But Alaska Rule of Criminal Procedure 6(r)(1) provides
in  relevant part that [i]n appropriate cases, ... witnesses  may
be  presented to summarize admissible evidence if the  admissible
evidence  will  be  available at trial.  And the  Alaska  Supreme
Court  stated  in  Taggard v. State9 that [t]he  need  to  use  a
summary  of  available  evidence may  arise  in  cases  involving
voluminous records.10
          We  conclude that Grandstaffs case is such a case.  The
medical  records  for  each patient and  the  prescriptions  that
supported the numerous drug charges were voluminous.  In State v.
Gieffels,11   the  supreme  court  considered  what   establishes
compelling  justification for the use of hearsay and stated  that
where a professional submits a technical report and his testimony
would  simply  affirm that report, it is proper to introduce  the
evidence by hearsay testimony since the presumed inconvenience is
a compelling reason for such evidence.12  Dr. Parran was available
if the grand jury had any questions for him and ultimately he did
testify  at  trial.   (Grandstaff also argues  that  Dr.  Parrans
report  was  based on privileged information and  documents.   We
address and reject those claims below.)
          Grandstaff also points out that Dr. Parrans opinion was
phrased  in  terms  of a reasonable degree of medical  certainty.
Grandstaff  argues that this standard is insufficient because  it
          is not proof beyond a reasonable doubt.  But evidence supporting
an indictment must establish a probability of guilt, not proof of
guilt beyond a reasonable doubt.13  Dr. Parrans conclusion in his
report  that  the  prescriptions issued by  Grandstaff  lacked  a
legitimate   medical  purpose  was  sufficient  to  support   the
indictment under this standard.
          Grandstaff  also complains that Dr. Parrans report  did
not  address  each  count  of misconduct involving  a  controlled
substance   individually,   and   that   the   report   contained
inflammatory  statements  not  within  his  realm  of  expertise.
Grandstaff waived these attacks on the indictment because he  did
not raise them in the superior court.14
          Finally,  Grandstaff claims that there was insufficient
time  for the grand jury to consider each count of the indictment
individually.   The record shows that the grand  jury  considered
the 105-count indictment for forty-three minutes before returning
a  true  bill. The record shows that the foreperson of the  grand
jury  indicated  that  the grand jury had considered  each  count
independently.  Standing alone, this record is not sufficient  to
establish  misconduct on the part of the grand jury.   Grandstaff
has not overcome the presumption of regularity that attaches to a
court proceeding.15
          We  conclude  that Judge Beistline did  not  abuse  his
discretion  when he rejected Grandstaffs claims and  declined  to
dismiss the indictment.16

          Grandstaffs motion to sever the sexual assault charges
          Before  trial,  Grandstaff moved  to  sever  the  three
sexual  assault  charges  from  the other  drug-related  charges.
Judge Beistline denied the motion.  Properly joined offenses  may
be  severed if trying the charges together would unduly prejudice
the defendant.17  We overturn the denial of a motion to sever only
if  the  defendant shows both an abuse of discretion  and  actual
          Grandstaff argues that he was prejudiced in  two  ways.
First,  he contends that the large amount of evidence related  to
the  drug  and theft charges constituted character evidence  that
would  induce  the  jury to convict him on the  allegedly  weaker
sexual assault charges because they would consider him a bad man.
Second,  Grandstaff argues that he should have  been  allowed  to
take  the  stand  to  explain the drug charges  without  exposing
himself to cross-examination on the sexual assault charges.
          Grandstaffs first claim is without merit.  As the State
points  out,  the  factual background  of  all  the  charges  was
intertwined  and  could not be explained in a  vacuum.   Evidence
that  Grandstaff prescribed large amounts of drugs  to  S.Y.  and
S.R. would be admissible in a trial on the sexual assault charges
to  show  that  Grandstaff prescribed the drugs  to  gain  sexual
access  to  those  patients.   If evidence  of  the  drug-related
offenses  would  be admissible in a trial for the sexual  assault
charges,  the defendant is hard-pressed to show actual  prejudice
from  the  failure to sever, since the evidence would  have  been
admitted even if the judge had granted separate trials.19
          In his second argument, Grandstaff contends that trying
          the charges together violated his constitutional right to remain
silent,  forcing  him  to face cross-examination  on  the  sexual
assault  charges should he choose to testify regarding the  drug-
related  charges.  Grandstaff relies on Cross v. United States,20
which  stands  for the proposition that forcing  a  defendant  to
choose  between  testimony on one count and  silence  on  another
constitutes prejudice.21
          But  in  a  line of cases beginning with  Cleveland  v.
State,22  the Alaska courts have ruled that in order to  rely  on
this argument, a defendant must make a convincing showing that he
has  both  important testimony to give concerning one  count  and
strong need to refrain from testifying on the other.23  This means
the defendant must specifically identify what he plans to testify
about on the one count, and what dangers lie in testifying on the
other.24   The  trial court found that Grandstaff  had  important
testimony to give on the drug charges, but that he was less  than
clear  about the dangers inherent in testifying about the  sexual
assault  charges.  Grandstaff is no more specific here.   Without
an  explicit showing of prejudice, Grandstaff is not entitled  to
severance.25  Therefore, we conclude that Judge Beistline did not
abuse his discretion in denying the motion to sever.

          The   evidence  seized  under  the  Glass  warrant  was
          Grandstaff moved to suppress the conversations  between
Grandstaff and S.Y. that were recorded under the Glass  warrants.
Grandstaff argued that because S.Y. acted as a police agent,  her
promises  to  drop  civil  charges if  he  spoke  with  her  were
impermissible  inducements.  Grandstaff argued  that  because  of
this  purported  inducement,  his  statements  were  involuntary.
Judge  Beistline  denied Grandstaffs motion to suppress,  finding
that  because Grandstaff was not in custody, was not  restrained,
was  not  forced to speak with S.Y., and was able to cut off  the
conversation at any time, his statements were voluntary.
          On  appeal,  Grandstaff renews  his  objection  to  the
admission of the recorded conversations, arguing that the police,
through  S.Y.,  violated  his rights to  counsel  and  to  remain
          During the recorded conversations, Grandstaff told S.Y.
repeatedly  that he could not talk to her because his lawyer  had
advised  him  not  to.  He contends that the conversation  should
have  ceased as soon as he invoked his rights to counsel  and  to
          Grandstaff argues that he invoked his right to  counsel
when he told S.Y. that his lawyer advised him not to talk to her.
Grandstaff  also  argues  that because the  police  knew  he  had
counsel for a potential civil suit, it was inappropriate for them
to  contact  him  in the course of their criminal  investigation.
Grandstaff  does not specify which right to counsel his  argument
concerns.   He  did  not  yet  have a Sixth  Amendment  right  to
counsel,  because  the case was in its investigatory  stage   the
right to counsel had not attached because Grandstaff had not been
formally charged with any crime.26  This is true even though  the
police knew Grandstaff had a lawyer.27
          Grandstaff asserts that S.Y. blocked his exit from  the
parking lot in order to speak with him.  He does not point to any
facts in the record to support this contention, though Grandstaff
did  state  on  the  tape, Can I pull out?28   If  Grandstaff  is
suggesting  that  his  Fifth  Amendment  right  to  counsel   was
violated,  this  argument  also  fails.   Grandstaff   does   not
challenge  Judge Beistlines findings that Grandstaff was  not  in
custody,  was not restrained, was not forced to speak with  S.Y.,
and was able to cut off the conversation at any time.  Grandstaff
does not otherwise argue that he was in custody.29
          Grandstaff  also argues that he invoked  his  right  to
silence by repeatedly telling S.Y. that he could not talk to her.
Yet Grandstaff did not walk away, and continued to speak to S.Y.
          Grandstaff  contends  that S.Y. induced  Grandstaff  to
speak  by  promising to drop civil charges against  him,  and  by
threatening  to  commit  suicide if  he  did  not  talk  to  her.
Grandstaff asserts that under Alaska law, statements acquired  by
improper  inducements  and threats are inadmissible.   Grandstaff
cites Beavers v. State30 and two other cases31 in which confessions
were   ruled  involuntary  after  police  promised  leniency   or
threatened harsher treatment.  The Alaska Supreme Court stated in
Beavers  that  [t]hreat-induced confessions should be  considered
presumptively    involuntary   absent   evidence    affirmatively
indicating  that  the  suspects will  was  not  overcome  by  the
          Even  assuming  S.Y. was a police agent,  there  is  no
merit  to  Grandstaffs  claim that his statements  to  S.Y.  were
involuntary.   We  addressed a similar claim  in  an  unpublished
case,   Tso  v.  State.33   Tso  was  the  suspect  in  a  murder
investigation, and the police obtained a Glass warrant to  record
conversations between Tso and an acquaintance named John Monroe.34
Tso  moved to suppress the conversations recorded under the Glass
warrant,   arguing   that  his  incriminating   statements   were
involuntary because Monroe had continually badgered him  to  talk
about  the  homicides  and  had disparaged  the  Public  Defender
Agency,  which  was representing Tso, as part of a  psychological
campaign to get Tso to talk.35  We rejected Tsos claim:
               During  his  conversations with  Monroe,
          Tso was not in custody and he did not know he
          was  speaking to a police agent.  Thus,  from
          Tsos  perspective, Monroes attempts to engage
          Tso  in conversation about the homicides  and
          Monroes  negative  comments  concerning   the
          Public  Defender  Agency  did  not  bear   an
          official  imprimatur.  We  recognize  that  a
          defendants  statements can be involuntary  if
          they are elicited by coercive actions on  the
          part of an informant secretly working for the
          police.  However, Monroe did not threaten Tso
          to  make  him confess, nor did Monroe promise
          Tso  immunity  or  leniency  for  confessing.
          Monroe  and  Tso did engage in a  fist  fight
          during this period of time, but there  is  no
          indication that this altercation was  related
               to Monroes attempts to obtain information
          from Tso.
               While Tso did make several incriminating
          statements during his series of conversations
          with    Monroe,   Tso   generally   displayed
          reticence  when speaking about the homicides.
          There  is  no  evidence that  Tsos  will  was
          overborne by Monroe or that Monroe threatened
          or  promised  anything  that  would  make  an
          innocent   person   confess   to   committing
          Similarly,    Grandstaff   made   some    incriminating
statements during his two conversations with S.Y., but  there  is
no  evidence that he made these statements because his  will  was
overborne.   It  is true that S.Y. said she wanted  to  drop  her
civil  suit and that she was suicidal.  But she never offered  to
drop  her  civil suit in exchange for an admission by Grandstaff;
nor  did  she  threaten to commit suicide if he did not  make  an
admission.   Indeed, Grandstaff has not identified  any  specific
inculpatory  statements he claims were induced by  S.Y.s  alleged
promises and threats.
          Grandstaffs claim finds little support in Beavers.   In
Beavers,  the  defendant confessed in detail to his participation
in a robbery after a trooper told him he would get hammered if he
lied about his involvement in the crime.37  Beavers was a sixteen-
year-old boy who was interrogated by a trooper in a patrol car.38
Grandstaffs  conversations  with  S.Y.,  a  former  patient   and
admitted  drug  addict,  had none of the indicia  of  a  coercive
police interrogation.  Although there is some evidence that  S.Y.
was blocking Grandstaffs truck when she first contacted him, this
did  not  prevent Grandstaff from voluntarily ending the contact.
During  the  second recorded conversation, Grandstaff  repeatedly
refused  S.Y.s invitations to sit in her car, and he  could  have
walked away at any time.
          Moreover,  the record contains affirmative  indications
that  S.Y.s threats and entreaties were ineffective.39  When S.Y.
told  Grandstaff she was suicidal, and that she  might  lose  her
child because of her drug use, Grandstaff simply recommended that
she  go  to the hospital and reassured her that everything  would
work  out.  Although S.Y.s offers to drop her civil case may have
prompted Grandstaff to tell S.Y. he cared about her and  that  he
had  not  been involved with other women, he consistently  denied
knowing  she  was  an  addict when he prescribed  drugs  to  her.
Viewed  as a whole, the conversations show that Grandstaffs  will
was not overborne and that his statements to S.Y. were voluntary.
          Grandstaff   also   suggests  that  the   conversations
infringed  on  his right to privacy.  Grandstaff  maintains  that
suppression  issues  require  courts  to  balance  the   societal
interest  in using reliable evidence against criminals  with  the
societal  interest in protecting citizens privacy.40   Grandstaff
does  not  explain his privacy argument further, so  we  conclude
that it is waived for inadequate briefing.41
          Because  Grandstaff had no right to counsel to  invoke,
and  because  S.Y.s statements were not coercive police  activity
          that would render a statement involuntary, Judge Beistline
properly  denied  Grandstaffs motion  to  suppress  the  recorded
conversations with S.Y.
          The privilege claims
          Grandstaff  argues that the superior  court  improperly
admitted evidence that was protected by privilege.
          Grandstaff raised these claims in a motion to  suppress
filed after the State filed a motion in limine. The States motion
in   limine  sought  rulings  on  the  admissibility  of  several
admissions  by  Grandstaff relating to his sexual  conduct.   The
States motion grouped Grandstaffs admissions into eight different
categories: admissions to personnel at his clinic; admissions  to
hospital  personnel during their review of his hospital  practice
privileges that were memorialized in records prepared by hospital
personnel;  admissions contained in medical records  from  Abbott
Memorial Hospital in Minneapolis, Minnesota, and the Sante Center
for  Healing in Argyle, Texas (facilities where Grandstaff sought
professional help for his behavior), and admissions contained  in
the  agreement  to limit his hospital privileges;  admissions  in
Grandstaffs  personal diary that he prepared while in  treatment;
admissions  in  his  medical license renewal application;  verbal
admissions  during an interview with a Division  of  Occupational
Licensing (DOL) investigator; admissions during an examination of
Grandstaff  by  Dr.  Irwin Dreiblatt contained  in  a  report  by
Dreiblatt to the State Medical Board; and admissions contained in
Grandstaffs agreement to surrender his medical license.
          In  Grandstaffs motion to suppress, he asked the  court
to  exclude almost all of the States identified evidence as  well
as  additional items, and he requested an evidentiary hearing  on
the motion.
          In  a  written decision, Judge Beistline ruled  on  the
admissibility of the evidence described in the motions and denied
the  request  for an evidentiary hearing.  Judge Beistline  ruled
that  Grandstaffs admissions that were memorialized in  documents
were admissible, with the exception of Grandstaffs personal diary
and disclosures to his clinic that were not prepared for business
purposes.   A  few  days later, Judge Beistline issued  an  order
containing  further analysis of his decision.  Below, we  discuss
the  issues  raised  by  Grandstaff  regarding  Judge  Beistlines

               Dr. Dreiblatts testimony
          First,  Grandstaff argues that Dr. Dreiblatts testimony
should  have  been  excluded.  Grandstaff  was  examined  by  Dr.
Dreiblatt after the DOL learned that Grandstaffs affiliation with
his clinic had been terminated and that Grandstaffs privileges at
the  Fairbanks  Memorial Hospital had been  limited.   Also,  Dr.
Schultz  contacted  the DOL after S.Y. and S.P.  told  him  about
Grandstaffs   conduct.    Coincidentally,   around   this   time,
Grandstaff  submitted  an application to the  DOL  to  renew  his
medical license because it was up for renewal.
          In  the renewal application, Grandstaff stated that  he
had  been  evaluated for disorders for which he had received  two
months of treatment.   Grandstaff provided the DOL with a release
that  authorized the DOL to examine all records that  pertain  to
credentialing records and actions at facilities at which  I  have
applied  for  or  held privileges to practice  medicine,  and  to
provide  copies  of  those  records  to  the  [DOL]  and/or   its
investigators,  and/or  representatives  of  the  Office  of  the
Attorney General of the State of Alaska.
          Later   that  month,  a  DOL  investigator  interviewed
Grandstaff,  who  was  accompanied by his  attorney.   Grandstaff
admitted having sexual relations with S.Y. at his office, at  her
home,  and at a hotel near his office.  He also admitted that  he
had sexual relations with S.P. at his office.
          The   State  Medical  Board  asked  Grandstaff  to   be
evaluated  by Dr. Dreiblatt; Dreiblatt is a forensic psychologist
who concentrates on issues involving doctors who engage in sexual
conduct with their patients.  Grandstaff submitted to a three-day
evaluation by Dr. Dreiblatt.
          Before  the evaluation, Grandstaff provided  a  release
that  authorized Dr. Dreiblatt to report his findings to the  DOL
and the State Medical Board.
          At  trial,  Dr.  Dreiblatt  testified  that  Grandstaff
admitted  being  sexually involved with both S.Y.  and  S.P.  and
admitted  prescribing  large amounts of drugs  to  them,  despite
their  long-term  drug dependence problems.  Grandstaff  reported
that  he  had sexual fantasies not only about S.Y. and S.P.,  but
also other female patients.
          Dr.  Dreiblatt concluded that Grandstaff used drugs  to
bait  S.Y.  and S.P. and to reward them for having sex with  him.
According  to  Dr. Dreiblatt, Grandstaff admitted that  he  chose
vulnerable,  unhealthy addicts in order to transform the  doctor-
patient relationship into a sexual relationship.
          Grandstaff  argues  that  Dr. Dreiblatts  testimony  is
inadmissible  on two grounds.  Grandstaff first claims  that  Dr.
Dreiblatts  evaluation  is covered by the patient-psychotherapist
privilege  in  Alaska  Rule of Evidence  504(b).   Evidence  Rule
504(b) defines the privilege as follows:
               General  Rule of Privilege.   A  patient
          has a privilege to refuse to disclose and  to
          prevent  any  other  person  from  disclosing
          confidential  communications  made  for   the
          purpose  of  diagnosis or  treatment  of  the
          patients  physical,  mental[,]  or  emotional
          conditions ... between or among the  patient,
          the patients physician or psychotherapist, or
          persons   who   are  participating   in   the
          diagnosis or treatment under the direction of
          the  physician or psychotherapist,  including
          members of the patients family.
          The  rule applies to confidential communications within
the  group  designated  in  the rule.   Evidence  Rule  504(a)(4)
defines confidential communication:
               A  communication is confidential if  not
          intended  to  be disclosed to  third  persons
          other  than  those  present  to  further  the
          interest  of the patient in the consultation,
          examination,   or   interview,   or   persons
          reasonably necessary for the transmission  of
          the   communication,  or  persons   who   are
          participating in the diagnosis and  treatment
          under  the  direction  of  the  physician  or
          psychotherapist,  including  members  of  the
          patients family.
          In   Plate   v.  State,42  we  considered   whether   a
communication  was a confidential communication for  purposes  of
the   privilege   in   Evidence   Rule   506,   which   addresses
communications with members of the clergy.43  We observed that the
definition of a confidential communication in Rule 506 tracks the
definition  for  the psychotherapist-patient  privilege  and  the
lawyer-client privilege.44  We announced a four-part test that  a
person  claiming  that  a  communication  with  a  clergyman  was
confidential must prove: first, that the communicant subjectively
believed  that  the conversation was private; second,  that  this
belief  was  reasonable under the circumstances; third,  that  he
intended that the communication not be disclosed to anyone  else;
and fourth, that he reasonably believed that the clergyman shared
this intention.45  We used this same test when we considered  the
application of the psychotherapist-patient privilege in Ramsey v.
          Before  Grandstaff met Dr. Dreiblatt,  Dreiblatt  wrote
Grandstaff a letter that confirmed that Grandstaff would have  to
sign  a  release  so  that Dreiblatt could report  to  the  State
Medical  Board.   When  Dr. Dreiblatt began  the  interview  with
Grandstaff,   Dreiblatt  told  Grandstaff  that   anything   they
discussed  could be and would likely be included  in  the  report
that  went to the Medical Board.  Grandstaff executed the release
that  authorized  Dr. Dreiblatt to report to  the  State  Medical
Board.  Applying the test from Plate and Ramsey, it is clear that
a  reasonable  person in Grandstaffs position would  not  believe
that the contents of his conversation with Dr. Dreiblatt would be
confidential.   Thus,  we  reject  Grandstaffs  claim  that   his
communications   with   Dr.  Dreiblatt  were   covered   by   the
psychotherapist-patient privilege established  in  Evidence  Rule
504(b).        Next, Grandstaff argues that the admission of  Dr.
Dreiblatts  testimony violated his constitutional  right  against
self-incrimination.  Grandstaff contends that because  he  risked
losing  his  medical  license if he did not  cooperate  with  Dr.
Dreiblatt,  the admission of his statements during the evaluation
was  akin  to  compelled self-incrimination.   But  there  is  no
indication  that Grandstaff would automatically lose his  license
or that the Medical Board would impose any other penalty based on
the  mere  fact  that  he  asserted his privilege  against  self-
incrimination.   Therefore, the interview  did  not  infringe  on
Grandstaffs privilege against self-incrimination.47
          The  State  contends that Grandstaff did  not  preserve
this  argument in the superior court.  The States point is  well-
taken.   Grandstaff mentions Dr. Dreiblatts report as an  adjunct
to  his claim that his statements to a DOL investigator were  not
voluntary.   A  trial judge considering a voluntariness  question
          must consider several factual issues, including the mental state
of  the defendant, to determine if the defendant waived his Fifth
Amendment  rights.48  Grandstaff did not sufficiently  alert  the
superior court that it needed to resolve these issues to rule  on
his claim.
          Even  if  Dr. Dreiblatt was an agent of the  State  for
purposes of deciding whether the Fifth Amendment applied, our own
review of the record to evaluate Grandstaffs mental state and its
legal   significance  reveals  that  nothing  about   Grandstaffs
evaluation by Dr. Dreiblatt supports an involuntariness claim.

               The  psychotherapist-patient privilege as  applied
               to  records memorializing the treatment Grandstaff
          Next,  Grandstaff  argues  that  the  records  of   his
evaluation and treatment at Abbott Northwestern Hospital and  the
Sante    Center    for    Healing    were    covered    by    the
psychotherapist-patient  privilege.   After  Grandstaffs   clinic
learned  of  his  misconduct, Grandstaff was  placed  on  medical
leave.    Thereafter,   Grandstaff  was   evaluated   at   Abbott
Northwestern Hospital.  After the evaluation, Grandstaff enrolled
in  the Sante Center where he stayed from June through August  of
1998.   Grandstaff  listed both programs as facilities  where  he
sought treatment for his disorders.
          The  DOL  asked Grandstaff for a release to review  his
treatment  records.   Grandstaff provided the  release.   Because
Grandstaffs    release   operates   as   a    waiver    of    the
psychotherapist-patient privilege under Evidence Rule 504(b),  we
reject Grandstaffs privilege claim.
          Grandstaff   also   claims   that   the   records   are
confidential  under  42 CFR Part 2.  But the  release  Grandstaff
signed recognized that portion of the Code of Federal Regulations
and waived his rights under that regulation.
          Finally,  Grandstaff argues that even  if  the  records
were  admissible, they should have been excluded  because,  under
Evidence  Rule  403,  the probative value  of  the  evidence  was
outweighed  by  the danger of unfair prejudice.  Grandstaff  does
not  explain  why this evidence should have been excluded  beyond
stating  that  the  evidence was inflammatory  and  had  marginal
probative  value.  Judge Beistline discussed this balancing  test
when  he  ruled on Grandstaffs privilege claims, and declined  to
exclude the records of Grandstaffs treatment.  Grandstaff has not
convinced  us  that  Judge Beistlines  ruling  was  an  abuse  of

               The  court  did  not  err by admitting  statements
               Grandstaff made during a peer review investigation
               of his conduct
          Medical peer review refers to the process hospitals use
to oversee medical staff to improve patient care, reduce hospital
liability,  and lower rates for malpractice insurance.   In  this
case,  the trial court admitted inculpatory statements Grandstaff
made   during  a  peer  review  investigation  of  his   conduct.
Grandstaff  claims  these admissions were  privileged  under  the
          statute governing the confidentiality of peer review records.
          Alaska  Statute  18.23.030(a)  provides,  in  pertinent
part,  that  all  data  and  information  acquired  by  a  review
organization in the exercise of its duties and functions shall be
held  in confidence and may not be disclosed to anyone except  to
the  extent  necessary to carry out the purposes  of  the  review
organization  and  is not subject to subpoena  or  discovery.   A
violation is punishable as a misdemeanor.49
          The  issue  in this case is the scope of the  privilege
created  by  this statute   in particular whether  the  privilege
applies  in all cases, both civil and criminal, or only in  civil
cases.  The conventional justification for this privilege is that
protecting  doctors  from  testifying  against  their  colleagues
promotes candor during peer review proceedings.50  Such candor, at
least  in  theory,  leads to more rigorous oversight  of  patient
medical care and lower malpractice premiums.
          The  privilege  applies  to all  data  and  information
acquired  by  a peer review organization in the exercise  of  its
duties   which  would include statements made by a  doctor  under
investigation,  as well as statements by medical staff  providing
evidence.    The  privilege  does  not  reach  any   information,
documents, or records that are independently available from third
parties.  These materials are not immune from discovery or use in
a   civil  action  merely  because  they  were  presented  during
proceedings of a review organization.51  Moreover, a member of  a
peer  review  committee,  or a person who  testified  before  the
committee, cannot be prevented from testifying in a civil  action
about matters within their knowledge  though they cannot be asked
about  what they said to the peer review committee, or about  the
opinions they formed as a result of their participation  in  peer
review  proceedings.52  In other words, the statute  shields  the
proceedings and files of peer review committees from subpoena  or
discovery, but the information may be obtained independently from
third parties.
          Thus,  if  this were a civil case, the answer would  be
clear:  Grandstaff  could be called as a witness  in  that  civil
case,  and  he  could be asked the same questions  he  was  asked
during peer review.  But any statements he previously made to the
review  committee would be privileged, and he could not be  asked
to disclose what he said to the committee.
          Alaska courts have not addressed whether this privilege
extends  to criminal cases.  But the language and history  of  AS
18.23.030(a)  suggest  that the privilege  is  limited  to  civil
          Read   in   isolation,  the  first   sentence   of   AS
18.23.030(a) is very broad, and there is nothing to suggest  that
it  is limited to civil cases:  Except as provided in (b) of this
section,   all  data  and  information  acquired  by   a   review
organization in the exercise of its duties and functions shall be
held  in confidence and may not be disclosed to anyone except  to
the  extent  necessary to carry out the purposes  of  the  review
organization and is not subject to subpoena or discovery.
          But  AS 18.23.030(a) only makes sense as a whole  if  a
narrow construction is put on the first sentence.  The parts of a
          statute should be construed together so as to produce a
harmonious whole.53  If the first sentence of AS 18.23.030(a)  is
interpreted  broadly to mean that all information acquired  in  a
peer review investigation is privileged in both civil or criminal
actions,  the  exception in the third sentence of subsection  (a)
would   be   incongruous.   That  exception  provides  that   any
information,  documents, or records that are otherwise  available
from  original sources are not immune from discovery or use in  a
civil   action   merely  because  they  were   presented   during
proceedings  of  a  review  organization.   If  the  peer  review
privilege  extended  to  civil and  criminal  actions,  but  this
exception   applied  only  to  civil  actions,  then  information
otherwise available from original sources  for instance,  medical
records  provided to the peer review committee  would  be  immune
from discovery in criminal cases but not in civil cases.
          Although  the pertinent legislative history is limited,
it also supports the conclusion that the peer review privilege in
AS  18.23.030  is  limited  to  civil  actions.   Alaska  Statute
18.23.030  was  enacted in 1976 as part of  a  larger  bill  that
addressed  the  issue  of  rising medical  malpractice  insurance
rates.54   There  does  not  appear  to  be  any  contemporaneous
legislative  history  addressing  whether  the  privilege  in  AS
18.23.030(a) applies to criminal actions.  However, AS  18.23.030
was  amended  in  1987  when the legislature  passed  a  bill  to
strengthen  the State Medical Boards ability to detect  and  weed
out incompetent and impaired medical practice.55  That bill, House
Bill  70, amended AS 08.64.336 to tighten the statutory  duty  of
hospitals to report a doctor to the State Medical Board when they
take action to revoke or restrict the doctors hospital privileges
(or  when  the  doctor resigns to avoid such  action).56   During
discussion of House Bill 70, State Medical Board Chair Thomas  L.
Conley  told the House Judiciary Committee that some  members  of
the  Medical  Board  were concerned that imposing  this  stricter
reporting  requirement on hospitals would chill the  peer  review
               The  Board  is split on this.   ...  The
          worry  among  certain  people  is  that   the
          quality  review and peer review functions  of
          the  hospitals  may suffer some  problems  by
          requiring  reports  ... and theres a  feeling
          among  some Board members that it would chill
          things  to  the point that no  one  would  be
          willing to participate in any kind of quality
          review  or  peer  review for  fear  that  the
          records  would wind up being subpoenaed.   As
          things  now  stand  [under  AS  18.23.030(a)]
          those  ...  [peer  review] organizations  now
          have confidentiality and their records cannot
          be  subpoenaed.[57] However, it  only  really
          refers  to  civil  actions, not  to  criminal
          actions.   So its an area of some  confusion.
          Some  people  feel  that  although  ...   the
          intention  [behind the reporting requirement]
          is  good, that it would wind up setting up  a
               situation where quality assurance committees
          in hospitals would fear to do anything.  I am
          not  personally of that opinion but there  is
          some  strong feeling on the Board  that  that
          would be the case.[58]

          It  appears from this statement that, at least in  1987
when   House  Bill  70  was  enacted,  the  State  Medical  Board
interpreted  the  privilege  provision  in  AS  18.23.030(a)   as
applying only to civil actions.  Conleys comment before the House
Judiciary Committee does not provide definitive insight into what
the  legislature  intended  when it initially  adopted  the  peer
review privilege in 1976.  On the other hand, if legislators  had
disagreed  with  Conleys interpretation, it  would  have  been  a
simple   matter  to  amend  the  statute  to  clarify  that   the
evidentiary  privilege  extended to criminal  cases.   Where  ...
practical  and contemporaneous interpretation has been called  to
the  legislatures attention, there is more reason to  regard  the
failure  of  the  legislature  to change  the  interpretation  as
presumptive evidence of its correctness.59
          Moreover,  House  Bill 70 amended  AS  18.23.030  in  a
manner  that  suggests the legislature adopted the State  Medical
Boards  interpretation.  As initially drafted, the bill  made  no
mention of the peer review privilege in AS 18.23.030.  But  in  a
hearing before the House Judiciary Committee, Dale Shirk  of  the
Health  Association of Alaska expressed concern that the stricter
hospital reporting requirement would require hospitals to release
information that was protected from disclosure by the peer review
privilege.   Shirk  suggested an amendment  to  AS  18.23.030  to
ensure  that  only  the State Medical Board had  access  to  such
          Conley  drafted  a proposed amendment  that  same  day,
which   initially  read:   The  board  shall  hold  such  reports
confidential and they shall be non-discoverable unless and  until
the  board shall issue a final order of disciplinary action under
AS  08.64.331(a).61  The language that was ultimately adopted  as
subsection  AS  18.23.030(d)  instead  paralleled  the  privilege
language  in  AS 18.23.030(a)  that is, it read that  information
contained  in a report submitted to the State Medical Board,  and
information gathered by the board during an investigation,  under
AS  08.64.336 is not subject to subpoena or discovery unless  and
until the Board takes formal action on a practitioners license.62
Given  Conleys  statement that the peer review  privilege  in  AS
18.23.030(a) was limited to civil actions, and the absence of any
legislative discussion about expanding the privilege to  criminal
proceedings, it appears that the legislature intended the  phrase
not  subject  to  subpoena or discovery to apply  only  to  civil
          Furthermore,  by  eliminating the  privilege  once  the
Medical   Board  takes  action  on  a  license,  the  legislature
demonstrated  its  willingness to limit the  privilege  to  serve
other  interests, even though doing so might result in some  loss
of candor in peer review proceedings.  As noted above, Dale Shirk
of  the Health Association of Alaska had recommended giving  only
          the State Medical Board access to such reports; the legislature
instead  opted for a narrower privilege, limiting access  to  the
reports only until the Board takes formal action on a license.
          Amicus  Curiae Alaska Dental Society points out that  a
Michigan  appeals  court has interpreted  Michigans  peer  review
privilege  to  extend  to criminal cases.   But  although  In  re
Lieberman63  has some persuasive force as a policy decision,  the
statute  it construes is distinguishable.  It provides  in  full:
The  records, data, and knowledge collected for or by individuals
or  committees  assigned  a  review function  described  in  this
article  are confidential and shall be used only for the purposes
provided in this article, shall not be public records, and  shall
not  be available for court subpoena.64  The Michigan court  thus
was  not  obliged, as we are, to harmonize the broad language  of
its peer review privilege with other language in the statute that
contradicts such a broad reading.
          Evidentiary  privileges are narrowly  construed.65   We
have  found no legislative history conveying that the legislature
intended  the peer review privilege to apply in criminal actions,
and the language of AS 18.23.030, considered as a whole, suggests
that this was not the legislatures intent.  We therefore conclude
that the privilege in AS 18.23.030(a) does not extend to criminal
          Furthermore, as the State points out, the  peer  review
statute  does not bar the use of evidence that is available  from
an independent source.  After Fairbanks Memorial Hospital limited
Grandstaffs   privileges,  the  hospital  was  required   by   AS
08.64.336(b) to report that action to the State Medical Board.
          Under  AS  08.64.101, the State Medical Board  has  the
dual  responsibilities of examining applicants for licensing  and
imposing disciplinary sanctions.  And the State Medical Board  is
classified   as   a   peer   review   organization    under    AS
18.23.070(5)(B).   Therefore,  the general  provisions  regarding
confidentiality and privilege of the records would  apply.   But,
as discussed above, under AS 18.23.030(d), if the Board suspends,
revokes,  limits, or conditions a license, the information  in  a
report  submitted to the Board and information  gathered  by  the
Board  in  an  investigation under AS  08.64.336  is  subject  to
discovery by a plaintiff in any case.
          The   Board  received  the  report  from  the  hospital
limiting  Grandstaffs privileges.  Grandstaff himself  agreed  to
release information to the DOL during its investigation on behalf
of  the  Board, including Dr. Dreiblatts report.   The  DOL  also
obtained  the  records  from Abbott Northwestern  and  the  Sante
Center  as  part of its investigation.  During the investigation,
Grandstaff  spoke  to an investigator from the DOL  and  admitted
various instances of sexual misconduct with patients.  The  Board
eventually  received  Grandstaffs  agreement  to  surrender   his
license  in  lieu of revocation or other action.  To  the  extent
this  information  may  have  been  protected  by  statute,   the
investigation was apparently complete when Grandstaff reached  an
agreement with the DOL to surrender his license.  On the basis of
this  agreement,  the  Board  entered  an  order  accepting   the
agreement  and confirming that Grandstaff was no longer  licensed
          to practice medicine in Alaska.  This action was consistent with
the  Boards  powers  to  suspend,  revoke,  limit,  or  condition
Grandstaffs  license such that any privilege covering Grandstaffs
admissions of sexual misconduct would apparently no longer  apply
under AS 18.23.030(d).
          Additionally,  the State argued in the  superior  court
and here on appeal that the releases that Grandstaff supplied  to
the  DOL  waived  any  claim of privilege that  Grandstaff  might
otherwise  have  asserted.  The State maintained  that  under  an
objective  evaluation of the releases, Grandstaff authorized  the
release  to the Attorney Generals office, including the  division
that  prosecuted  Grandstaff.  Judge Beistline  agreed  with  the
States   analysis  of  the  releases.   While  this  may  provide
additional authority for the admission of the items released,  we
need not resolve this claim.
          Grandstaff  claims  that Judge  Beistline  should  have
conducted   an  evidentiary  hearing  to  develop   the   factual
background  for  these  claims.  But  for  purposes  of  deciding
Grandstaffs  claims,  Judge Beistline  stated  that  he  accepted
Grandstaffs  offers of proof regarding disputed  factual  issues.
Grandstaff has not shown any error.
          Grandstaff  argues in his reply brief that because  his
participation  in  the  peer review process  was  compelled,  his
statements  during peer review were not admissible under  Garrity
v.  New  Jersey.66  Garrity and other police officers,  who  were
questioned  under  oath  in a court-ordered  investigation,  were
warned  that  if they asserted their Fifth Amendment  privileges,
they  would  be  removed  from their positions.67   The  officers
testified  and their testimony was used against them in  a  later
criminal  trial.68   The  Supreme Court viewed  the  question  in
Garrity  as  whether a state can use the threat of  discharge  to
secure  incriminatory evidence against an  employee.69   But  the
Fairbanks Memorial Hospital peer review process did not  directly
imperil  Grandstaffs license.  Furthermore, the statute at  issue
in  Garrity  mandated  removal from office when  an  officeholder
declined,   on  Fifth  Amendment  grounds,  to  answer  questions
relating  to  the  office or employment.   There  is  no  similar
provision  in  the statutes or regulations for the State  Medical
          In  State v. Rivers,70 we addressed a claim similar  to
the one Grandstaff raises, and recognized the distinction between
a  situation  where  a person who asserts the privilege  will  be
penalized  for  the  mere act of asserting the privilege  without
regard  to  any  other information in the case, and  a  situation
where a person is free to assert the privilege but will then face
the  risk  that, based on the remaining evidence,  the  court  or
administrative agency will decide the case against them.71  Here,
if   Grandstaff   had  asserted  the  privilege   against   self-
incrimination in the peer review process, and had not offered any
explanation  for  his  situation, he may have  faced  a  negative
result.   But  nothing in the record establishes that  Grandstaff
would  have  faced a negative result based soley on an invocation
of his privilege against self-incrimination.
          We  reject  Grandstaffs claim that his admissions  were
          compelled by the peer review processes.

          The issues surrounding Sergeant Geiers testimony
          The    State   called   Sergeant   Geier,   the   chief
investigating officer in the case, to describe his  role  in  the
investigation  of  Grandstaff.   Sergeant  Geier  obtained  Glass
warrants  and  search warrants as part of the investigation.   At
trial,  Sergeant  Geier  authenticated  the  tape  recordings  of
conversations between Grandstaff and S.Y. that were  seized  when
the Glass warrants were executed.  The State also offered several
other   exhibits  during  Sergeant  Geiers  testimony,  including
medical records, photographs,  hotel records, phone records,  and
a pair of Grandstaffs underwear.
          During  cross-examination, Grandstaffs  attorney  asked
Sergeant Geier to characterize Grandstaffs statements during  his
conversations  with  S.Y.   He  asked  Sergeant  Geiers   opinion
regarding whether Grandstaff wanted to have the conversation with
S.Y.,  and  asked Sergeant Geier to describe concerns  Grandstaff
might  have  had when conversing with S.Y.  Grandstaffs  attorney
asked  Sergeant Geier whether Grandstaff had made any  admissions
in  his  first  conversation with S.Y.  Sergeant Geier  responded
that  the  only  real admission that Grandstaff made  during  the
first  conversation was that Grandstaff and S.Y. knew each other,
but that the conversation revealed that there was apparently some
type  of  problem  between  them.   The  defense  attorney  asked
Sergeant  Geier  if he had heard any criminal admission  in  that
first  conversation,  which  the  defense  attorney  defined  for
Sergeant Geier as anything that you as a police officer know is a
crime.   Sergeant Geier responded, Off the top of  my  head,  no.
The  attorney  then asked if there was even a hint  of  admitting
criminality  in any way during the first conversation.   Sergeant
Geier  replied,  None  other   what  Ive  already  stated,   sir.
Grandstaffs attorney also asked Sergeant Geier whether Grandstaff
had  made any criminal admissions when S.Y. contacted him a third
time to execute the Glass warrant.  Sergeant Geier responded that
Grandstaff had not.
          On  redirect, the prosecutor directed Sergeant Geier to
specific  sections  of the recordings.  He asked  Sergeant  Geier
what  significance he placed on Grandstaffs seeming concern about
being  recorded, given the fact that Grandstaff had not yet  been
approached by the police.  Grandstaff objected, arguing that  the
prosecutor  was  improperly seeking Sergeant  Geiers  opinion  on
whether Grandstaff was guilty. The prosecutor told the court that
the  purpose  of the question was to demonstrate that Grandstaffs
statements  reflected a concern that he might  face  prosecution,
and  that  in  light  of  Grandstaffs cross-examination,  he  was
entitled  to  ask Sergeant Geier if that was how he characterized
Grandstaffs  statements.   Judge Beistline overruled  Grandstaffs
objection  that  Sergeant Geiers statements constituted  improper
opinion testimony.
          Sergeant  Geier  then  answered, Well,  it  was  pretty
obvious to me he was concerned of the police learning that he may
have  committed a crime, he had did some criminal wrongdoing,  he
was  worried  if the police were going to find out about  it  and
possibly ... press charges against him.
          The  prosecutor then drew Sergeant Geiers attention  to
the  point in the recording where S.Y. asked Grandstaff if he was
having sex with anyone else.  Grandstaff responded that he  could
not comment on that.  The prosecutor asked if Sergeant Geier,  as
an  experienced  investigator and one who was in  charge  of  the
case,  had any reaction to Grandstaffs response.  Sergeant  Geier
replied, Well, its a very  its not an outright admission of  of a
crime, however, its a very incriminating statement.
          Grandstaffs attorney then objected that this  testimony
violated  Grandstaffs  right  to  remain  silent.   The   defense
attorney  asked  Judge Beistline to stop the line of  questioning
and instruct the jury to disregard any disparagement of the right
to  remain silent.  The prosecutor countered that Grandstaff  did
not  remain  silent, and kept talking when he could  have  walked
away.  Judge Beistline denied the defense request.
          Thereafter, the prosecutor inquired as follows:
               Prosecutor:  Okay.  And so the part that
          I  want you to focus on is where [S.Y.] says,
          []if  you dont think someones recording this,
          then [ ] theres something wrong with my head,
          because you, you, you, you gave me Stadol and
          Mepergan at the Westmark and you knew  I  was
          an  addict.   What do you mean?  You  knew  I
          was.  What were you trying to pull?  What, I,
          youve  got to be thinking this is recorded.[]
          Okay,  as  an  experienced  officer,  and  in
          follow-up  to  counsels  question  about  ...
          whether  you  observed him admit specifically
          to  a  crime, what is your reaction  to  this
          particular passage?

               Sergeant   Geier:   Well,   again,   his
          response,  after she is talking, is   if  you
          read  it  in the context of a transcript,  it
          says,  what,  what do you want to  know?   He
          doesnt deny that there was any contact at the
          at  the  Westmark.  What are you   he  doesnt
          say,  what are you talking about, Stadol  and
          Mepergan. Its a direct  to me, its  a  direct
          acknowledgment that  in regards to the  hotel
          incident,  the  existence  of  Mepergan   and
          Stadol there.  Just an innocent person  would
          deny  the incident taking place and ask  more
          questions to, you know, what the heck are you
          talking about.

          Grandstaffs  attorney  renewed  his  objection  to  the
continued  reference to the officers giving his opinion  that  if
someone is innocent, they will protest, because there is a  right
of  a  defendant to simply say nothing and have his  silence  not
held  against him.  (During cross-examination of Sergeant  Geier,
Grandstaff  elicited testimony on this issue.  He asked  Sergeant
Geier to admit that it was generally a police officers philosophy
that  if  someone wont deny it, theyve got to be guilty  of  what
they  didnt deny.  Sergeant Geier responded that he believed that
it  was  normal  for  a  person  to  deny  a  false  accusation.)
Grandstaff asked first for a corrective instruction, then  for  a
mistrial,  on  the  ground that the prosecutor was  intentionally
disparaging a constitutional right.
          The prosecutor responded that Grandstaff did not invoke
silence,  but instead talked for eight minutes during  the  first
recorded  conversation, and for forty-three  minutes  during  the
second,   and   made  admissions  during  the  course   of   both
conversations.  The prosecutor further argued that the  questions
were   proper  to  rehabilitate  the  witness  after  the  cross-
examination   questions   impugned   the   competence   of    the
investigation  and the value of any admissions.  Judge  Beistline
ruled that the door had been opened on cross-examination and  the
questions were proper, and denied the motion for mistrial.
          The  prosecutor then asked Sergeant Geier to point  out
the  portions of the second recording with S.Y. that  constituted
admissions by Grandstaff.
          Judge  Beistline later decided not to give a corrective
instruction  on this point.  He stated he would not instruct  the
jury  that  Grandstaffs statements were or were  not  admissions,
andhe allowed the attorneys to argue this point to the jury.   In
his closing argument, the prosecutor stated that the significance
of  Grandstaffs failure to deny S.Y.s reference to  their  sexual
relationship was that an innocent person would say []what are you
talking  about[?].  Further, the prosecutor noted that Grandstaff
doesnt  deny  the hotel incident.  In turn, Grandstaffs  attorney
minimized the significance of the tapes and argued that S.Y.  had
her  own reasons for engaging in the conversations, such  as  her
desire to bring a civil suit against Grandstaff.
          Grandstaff  argues  on  appeal  that  Sergeant   Geiers
testimony  violated his right to silence.  It is well-established
that the prosecution cannot comment on the defendants decision to
remain silent when confronted by the police.  In Dorman v. State,72
the supreme court held that it was plain error for the prosecutor
to  ask  the jury to infer guilt from the fact that the defendant
remained silent for the eight minutes between his arrest and  the
time  he  was advised of his Miranda rights.73  In Silvernail  v.
State,74 we noted that evidence of pre-arrest silence also may be
inadmissible,  as  both  the  innocent  and  the  guilty  may  be
intimidated by the emotional and confusing circumstances  of  the
hostile    and   perhaps   unfamiliar   atmosphere   of    police
interrogation.75  We reversed Silvernails conviction  because  we
concluded it was plain error for the trial judge not to rule that
the  probative value of Silvernails silence was outweighed by its
prejudicial impact.76  Similarly, in Hamilton v. State,77 testimony
that the defendant failed to express concern for anyone else when
he  was  arrested  was  objectionable and should  not  have  been
admitted.78   In each of these cases, however, the defendant  was
silent  when  confronted by the police.79  Here,  S.Y.  contacted
Grandstaff  before the police approached him.  More  importantly,
Grandstaff was not silent, instead choosing to stay and talk with
S.Y.  for  eight and forty-three minutes in the first and  second
          recorded conversations.  Grandstaffs right to silence was
therefore not implicated when he chose to talk with S.Y.
          Next,  Grandstaff argues that once his  trial  attorney
objected to the testimony on constitutional grounds, it was plain
error  for the trial court to admit the evidence without weighing
its probative value against the danger of unfair prejudice.
          In   Silvernail,  the  defendant  testified   that   he
participated in a kidnapping and murder under duress.80  On cross-
examination, the prosecutor asked Silvernail why he did not claim
duress  when  the  police  first  contacted  him.81   Silvernails
attorney objected on Fifth Amendment grounds, but the trial judge
allowed  the testimony.82  On appeal, Silvernail argued that  the
evidence  should have been excluded under Alaska Rule of Evidence
          In reversing Silvernails conviction, we noted the close
relationship  between  the  constitutional  prohibition   against
evidence   of  an  accuseds  silence  in  the  face  of  official
questioning and the low probative value of such evidence.  Citing
Alaska  caselaw  expressing  distrust  of  silence  as  probative
evidence  of  guilt, we ruled that the trial  courts  failure  to
weigh  the  probative value of the evidence against its potential
for prejudicial harm was plain error.84
          Grandstaffs situation differs from Silvernails  in  two
important  respects.  First, as discussed above,  Grandstaff  was
contacted  by  S.Y.,  not  by  the  police.   In  Silvernail,  we
expressly  linked  our  analysis to the low  probative  value  of
silence in the face of official accusation.85  Here, there was no
official  accusation.   Even though Grandstaff  objected  on  the
ground that his right to silence was violated, that right was not
implicated because he did not face an accusation by the police.
          Second,  Silvernail argued on appeal that the  evidence
should  have  been  excluded  because  the  probative  value  was
outweighed by the risk of prejudice.86  Grandstaff, in  contrast,
does  not  argue  that  the probative value  of  Sergeant  Geiers
testimony  was  outweighed by its potential  for  prejudice.   At
most,  he  suggests  that  the risk of  prejudice  was  increased
because  Sergeant Geier was identified as the chief investigating
officer and sat with the prosecution throughout the trial.
          Grandstaff also argues that his statements do not  meet
the standard for an admission by silence as defined in Doisher v.
State.87   In  Doisher,  the court ruled  that  evidence  of  the
defendants purported admission by silence was prejudicial  error;
the  court  noted  that  Doishers  reluctance  to  engage  in   a
controversy  with his excited and irrational wife  could  explain
his silence.88
          Grandstaff  argues  that  his  reticence  was   equally
understandable,  given  S.Y.s claim that she  was  suicidal.  The
problem  with  this argument, however, is that Doisher  concerned
the applicability of a hearsay exception to admit an out-of-court
statement.89  Here, the trial court was faced with the  propriety
of  the  investigating  officers comment  about  an  undisputedly
admissible out-of-court statement.
          Furthermore,  as  we  already noted  above,  Grandstaff
raised  the  issue  of whether he had made any admissions  during
          cross-examination.  Because Grandstaff raised this issue, the
State   was  entitled  to  address  that  point  during  redirect
examination.        Grandstaff argues that the State  should  not
have  been  allowed  to  elicit Sergeant  Geiers  testimony  that
Grandstaff  demonstrated  consciousness  of  guilt  when,  during
Grandstaffs  conversations with S.Y., he expressed  concern  that
S.Y.  might  be surreptitiously recording the conversations,  and
when  he declined to answer S.Y.s question as to whether  he  was
having sex with any other woman.
          Sergeant  Geier was allowed to testify that,  based  on
Grandstaffs  fears  of  being secretly recorded,  it  was  pretty
obvious  ... [that Grandstaff] was concerned [about]  the  police
learning  that  he may have committed a crime[;] he  was  worried
[that]  the police were going to find out about it and ...  press
charges  against him.  Sergeant Geier was also allowed to testify
that  Grandstaffs refusal to say whether he was having  sex  with
someone besides S.Y. was very incriminating.
          The  State  argues that this testimony  was  admissible
because, when Grandstaffs attorney cross-examined Sergeant Geier,
the  defense attorney was able to get Sergeant Geier  to  concede
that  Grandstaff had never admitted any criminal behavior  during
his  conversations  with S.Y.  The State suggests  that,  because
Grandstaff  raised  this issue, the prosecutor  was  entitled  to
address  this point during his redirect examination  of  Sergeant
          It  is true that the prosecutor was entitled to address
this  point.  But the prosecutor was not entitled to  address  it
with inadmissible evidence.
          When  the prosecuting attorney elicited Sergeant Geiers
testimony  about the significance of Grandstaffs  fear  of  being
recorded,  and  the significance of Grandstaffs  refusal  to  say
whether he was engaging in sexual relations with other women, the
prosecutor explicitly asked Sergeant Geier to express his  expert
opinion as chief investigating officer [in this case, and] as  an
experienced police officer.  This was an improper use  of  expert
          The  Alaska Supreme Court addressed a similar situation
in  Kodiak v. Samaniego.90  Samaniego involved a civil lawsuit in
which  the  plaintiffs  alleged that  police  officers  had  used
unlawful force against them.91  The trial judge prevented the City
of  Kodiak  from  presenting an expert  witness  who  would  have
offered  an opinion as to whether, under the facts of  the  case,
the  officers  use  of  force against  the  plaintiffs  had  been
          Alaska   Rule  of  Evidence  702  states  that   expert
testimony  may be admitted [i]f scientific, technical,  or  other
specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue.93  This requirement
that  the  witnesss expertise will help the trier of fact   means
that  experts  should  not  be  allowed  to  stat[e]  their   own
conclusions  on  points that the jury is ... equally  capable  of
determining [for themselves].94
          Thus,  in  Samaniego, the supreme court held  that  the
trial  judge  properly  excluded this proposed  expert  testimony
          because (1) it was the jurys job to assess the conflicting
evidence  and  determine the facts of the encounter  between  the
plaintiffs and the police, and (2) it was the trial judges job to
identify  the applicable law governing the use of force,  and  to
instruct  the  jury on that law.  The experts opinions  on  these
matters would not have appreciably assisted the jury.95
          In  Grandstaffs  case, the prosecutor  could  certainly
argue  to  the jury that Grandstaffs fear of being recorded,  and
his  reticence to reveal his sexual relations with  other  women,
suggested a consciousness of guilt.  But neither Sergeant  Geiers
years  of  experience as a police officer, nor his  role  as  the
chief  investigator in this case, provides any reason to  believe
that Sergeant Geier had special insight into the significance  of
these   matters  beyond  what  the  jurors  could   discern   for
themselves.  It was therefore error for the trial judge to  allow
the State to elicit this testimony.
          Nevertheless, we conclude that this error was harmless.
The  prejudice of this testimony was the fact that the prosecutor
was  attempting to bolster an argument about the significance  of
Grandstaffs  actions  an argument that was otherwise  proper   by
showing that an expert criminal investigator had drawn this  same
inference.   In a close case, this kind of bolstering might  have
had  a  significant effect on the jurys deliberations.  But given
the length of Grandstaffs trial and volume of evidence presented,
we  conclude that the error in eliciting Sergeant Geiers personal
opinion on these matters was harmless.96
          Finally,   Grandstaff  argues  that   Sergeant   Geiers
testimony   violated   the  attorney-client  privilege,   because
Grandstaff could not explain why he answered S.Y. the way he  did
without   revealing  confidential  communications  with  counsel.
Grandstaff   offers  no  authority  to  support  this  assertion.
Grandstaff also asserts, without explanation, that the  testimony
violated his right to counsel.  But Grandstaffs right to  counsel
had  not yet attached, as no formal charges were pending and  the
case was still in its investigatory stages.97
          We  conclude  that Judge Beistline did  not  abuse  his
discretion  by  overruling  Grandstaffs  objections  to  Sergeant
Geiers testimony.98  We also conclude that Judge Beistline did not
abuse  his  discretion when he denied Grandstaffs  motion  for  a
mistrial on the same grounds.99

          We  uphold  the  remainder  of  the  superior
          courts challenged evidentiary rulings

          Grandstaff  challenges a number  of  the  trial  courts
other  evidentiary rulings.  He argues that Dr. Dreiblatt  should
not  have  been  allowed  to  testify  about  Grandstaffs  sexual
fantasies  about other female patients.  Grandstaff asserts  that
this  evidence was irrelevant and prejudicial, and states in  his
reply  brief  that  this evidence was similar  to  the  character
evidence  that was improperly admitted in Bingaman  v.  State.100
Grandstaff  does not explain why the evidence was prejudicial  or
improper, however.
          In Stevens v. State,101 we ruled that testimony about the
          defendants sexual fantasies was inadmissible character evidence
and should not have been admitted.102  We noted that the evidence
was  not relevant to show proof of motive, intent, plan,  or  any
other reason acceptable under Evidence Rule 404(b), and its  only
possible  relevance was to show Stevenss propensity to  commit  a
sex crime.103  We nonetheless held that the error was harmless due
to the strength of the States case, the brevity of the challenged
evidence,  and the fact that the prosecutor did not  mention  the
subject again.104
          Here,  the  evidence was presented as part of testimony
about how Grandstaff chose his victims.  Dr. Dreiblatt testified,
without objection from Grandstaff, that Grandstaff admitted  that
he  had  sexual fantasies about S.Y. and S.P., and that he  chose
addicts   who   were   unhealthy  and   vulnerable   for   sexual
relationships.   When  Grandstaffs  attorney  objected   to   the
question about other female patients, the prosecutor stated  that
the  evidence  was  admissible to show Grandstaffs  view  of  his
patient population.  The court allowed only the one question  and
answer.   The  prosecutor did not mention fantasies  about  other
patients again.
          Grandstaff  also  challenges Dr.  Dreiblatts  testimony
about  grooming.  This argument seems to refer to Dr.  Dreiblatts
testimony  that  Grandstaff  actively  sought  addicts  who  were
unhealthy   and   vulnerable   in  order   to   initiate   sexual
relationships.   The prosecutor returned to  this  theme  in  his
closing, arguing that Grandstaffs manner of choosing his  victims
was  predatory conduct, similar to the predatory conduct of child
molesters.   Though this is an inflammatory statement, Grandstaff
does   not   explain  why  he  contends  that  it  was   unfairly
prejudicial.  Grandstaff also has not shown where he objected  to
this testimony during trial.
          Dr.   Dreiblatts  testimony  about  Grandstaffs  sexual
fantasies  about  other  patients was arguably  admissible  under
Evidence Rule 404(b)(1).  Furthermore, this portion of Dreiblatts
testimony was brief, and the prosecutor did not mention it again.
We  conclude  that  any  error  in admitting  this  evidence  was
          Grandstaff next argues that certain testimony from S.P.
was  prejudicial  and  irrelevant.  Because  Grandstaff  did  not
object to this testimony during the trial, he must now show plain
          S.P.  testified that she did not go to  the  police  to
accuse  Grandstaff because she had been a victim of crime on  two
previous  occasions and had not been satisfied when she contacted
the  authorities.  She also testified that around the time of her
birthday in 1998, while she was under Grandstaffs care,  she  was
raped  by her neighbor, but did not report the incident to police
because  she  was not satisfied with the response of the  justice
system.   She did, however, tell Grandstaff.  And S.P.  testified
that when she told Grandstaff about the rape, he put her hand  on
his  penis and told her she would feel better if she massaged it,
then wrote her a prescription for Xanax.
          S.P.s testimony was relevant.  S.P. testified that  she
did  not  get  justice in the past when she  reported  crimes  in
          response to the question of why she did not go to the police this
time.  And S.P.s testimony about her neighbors sexual assault was
part  of the factual background of a specific incident of  sexual
contact with Grandstaff.  And Grandstaffs prescription for  Xanax
supported  the  States theory that Grandstaff provided  drugs  to
patients in return for sexual favors.
          Grandstaff cites Worthy v. State106 for the proposition
that  the prosecution may not introduce evidence that the  victim
was  raped previously in order to portray the defendant as a  man
so  bad that he raped someone he knew was particularly vulnerable
because  she had just been raped by someone else.107   Grandstaff
misconstrues  the issue in that case.  In Worthy,  the  relevance
and   admissibility  of  the  previous  sexual  assault  was  not
disputed;  the issue was whether Worthy could introduce  evidence
that the previous sexual assault did not actually occur.108   The
trial courts refusal to admit such evidence was reversible error.109
          S.P.s testimony that she had been raped previously  was
properly admitted and was, therefore, not plain error.
          Grandstaff  argues  that  the evidence  supporting  the
sexual assault claims was weak, and that he was only convicted on
these   counts  because  of  improper  character  evidence   that
portrayed  him  as  a  bad  man.   Grandstaff  argues  that   the
prosecutor  inappropriately furthered this idea  in  his  closing
argument, when he argued that Grandstaff sexually assaulted  S.Y.
at the Westmark Hotel:
               Do you think in light of everything that
          you know about this man, do you think that in
          light  of all the things that he has said  to
          Dr.  Dreiblatt and on the wire, that hes  the
          kind  of  guy  thats  going  to  respect  the
          situation  and  say  Im  not  going  to  take
          advantage of her?  No.  Hes there, hes  ready
          to go, and he jumped on her bones.

          Grandstaff  relies  on Bingaman, in  which  this  court
stressed  that  a  jury  may not convict a defendant  because  it
believes  he  deserves to be punished for other bad acts.110   In
Bingaman,   we   ruled  that  the  admission   of   evidence   of
approximately  sixty  prior  acts of  unindicted  misconduct  was
reversible error.111  Grandstaffs current objection, in contrast,
refers  to  part  of  the  prosecutors argument.   The  jury  was
specifically  instructed that the arguments of  counsel  are  not
evidence.   Grandstaff does not point to any evidence that  might
have improperly swayed the jury to convict him for sexual assault
because they thought he was a bad man.
          Grandstaff  next argues that Judge Beistline  erred  in
admitting  into  evidence a photograph of Grandstaffs  underwear.
When  executing  the  search warrant for  Grandstaffs  residence,
Sergeant  Geier  seized  a  pair  of  Grandstaffs  underwear.   A
photograph  of  the underwear was admitted into  evidence.   S.P.
testified   that   Grandstaff  wore  underwear   that   resembled
racquetball or bicycle shorts, and were different colors, such as
tan, brown, or white.  The underwear seized by Sergeant Geier was
similar  to those described by S.P., but the underwear was  blue.
          Grandstaff argues that the photograph was prejudicial and
irrelevant because the underwear was not the same color as  those
described  by  S.P.,  and because most men wear  underwear.   But
Judge  Beistline ruled that the difference in color went  to  the
weight of the evidence, not to its admissibility.  He agreed with
the  prosecutor  that  the evidence tended to  corroborate  S.P.s
testimony.   We  conclude that this ruling was not  an  abuse  of
          Grandstaff next argues that C.R.s testimony  about  how
Grandstaffs  conduct  had  affected  her  was  inflammatory   and
irrelevant,  and would have been more appropriate at  sentencing.
Grandstaff does not discuss the factual basis of this  claim  and
provides no authority to support it.
          The  prosecutor asked C.R. at the close of  her  direct
examination  if  there  was  anything  she  wanted  to   say   to
Grandstaff.   Defense counsel objected, and the  court  sustained
the  objection.   The prosecutor rephrased the  question,  asking
C.R.  what  effect Grandstaffs conduct had had on  her.   Defense
counsel  again  objected on relevance grounds.  While  the  judge
agreed  that  the question was not relevant to what  happened  on
particular dates, he allowed C.R. to answer.  C.R. testified:
               The   results   of  being    being   Dr.
          Grandstaffs patient, I have anxiety  attacks,
          depression,  just  like after  I  leave  here
          today,   I   will  have  to  go   lay   down.
          Depression,  cant  sleep,  cant  even  go  to
          school.     Cant   concentrate.     I     its
          indescribable.   My  my life is  just  upside
          down,  just because what this animal  oh,  he
          the  animal  do[es] have a  name   Grandstaff
          [has] done to me and my life.

          Even  if  this testimony should not have been  allowed,
any  error  was harmless considering the rest of C.R.s testimony.
C.R.  testified, without objection, that Grandstaff knew  of  her
history of drug addiction and prostitution, that she felt he  was
taking  advantage of her and pulling her back into her old  ways,
and  that she suffered from depression and anxiety attacks  as  a
result  of  his  conduct.  C.R.s statement about  the  effect  of
Grandstaffs conduct added little to this testimony.  Furthermore,
this  evidence  tended to show reasons why C.R. might  be  biased
against Grandstaff.
          Grandstaff  next  argues  that  the  written  agreement
limiting  his hospital privileges at Fairbanks Memorial  Hospital
and  the  agreement to voluntarily surrender his medical license,
both  of  which  included  admissions of sexual  misconduct  with
patients,  were  more prejudicial than probative and  should  not
have  been admitted.  Grandstaff argues that the exhibits  proved
nothing  more  than the fact he had sex with his patients,  which
was not disputed, and that there was a danger that the jury would
fail to distinguish between ethical and criminal misconduct.
          The  documents  were  relevant because  they  contained
Grandstaffs admissions that he had engaged in sexual contact with
his  patients,  which led to his discharge from his  clinic,  the
action  on  his  hospital privileges at  the  hospital,  and  the
voluntary  surrender of his medical license.  As to the agreement
limiting  Grandstaffs  hospital  privileges,  the  document   was
admitted into evidence with substantial redactions. While defense
counsel  objected to the admission of the document  even  in  its
redacted  form,  the  prosecutor agreed to redact  everything  to
which  Grandstaffs  attorney objected. Further,  defense  counsel
specifically   distinguished   between   ethical   and   criminal
misconduct in his closing argument:
               If  youre asking me to say there  was  a
          reason  for the sexual contact, Im not  going
          to  say that.  Im not going to say that,  but
          theres  a  difference between a  professional
          whos doing something thats an improper sexual
          contact   and   a   sexual   assault.    Ones
          unethical, itll get your license yanked;  the
          other one is criminal, itll get you in jail.

Under  these  circumstances, Judge Beistline did  not  abuse  his
discretion  in admitting the two documents.  The significance  of
the  admissions contained in the documents was properly  left  to
the jury to decide.
          Grandstaff  next  argues  that  a  phone  message   was
improperly   admitted   into   evidence.    Rebecca   Dean,    an
administrator at Grandstaffs clinic, testified about a phone call
she  received  while working at the clinic.  The phone  call  was
from   a  Fairbanks  physician  and  involved  allegations   that
Grandstaff  was  sexually involved with a female  patient.   Dean
testified that she wrote notes memorializing the call on a  phone
message   slip.   Over  Grandstaffs  objection,  Judge  Beistline
admitted the written phone message, which included the notes Dean
took  when she spoke with the physician.  Grandstaff argues  that
the  message  slip  was hearsay and challenges  Judge  Beistlines
ruling   that  it  was  admissible  under  the  business  records
exception to the hearsay rule.112
          The  handwritten note was offered to establish why  the
clinic  began  to investigate Grandstaff.  As such,  it  was  not
hearsay,  as it was not offered to prove the truth of the  matter
asserted,  that Grandstaff was sexually involved  with  a  female
          Grandstaff also argues that the trial court should  not
have  admitted evidence that his clinic reimbursed funds  to  the
Medicaid provider for Grandstaffs services.  Dean testified  that
clinicians  on the clinics investigative committee  reviewed  the
medical charts of S.Y. and S.P. and determined that some  of  the
services  provided by Grandstaff lacked legitimate purpose.   The
clinic  then  prepared  refund checks for those  services.   Dean
testified  that the refunds were not requested by  Medicaid,  but
were  undertaken  voluntarily  to  comply  with  federal  billing
          Grandstaff  argues that Deans testimony and the  letter
sent  to  Medicaid  providing notification  of  the  refund  were
hearsay  because Dean had no personal knowledge  of  whether  any
particular  service lacked medical purpose.  But  Dean  testified
          repeatedly on cross-examination that the determinations of
medical purpose were made by the clinics physicians, and that  as
a lay person without medical expertise, she had not been involved
in  those  decisions.   Judge  Beistline  overruled  the  hearsay
objection  at  trial and admitted the document and the  testimony
under  the  business  records  exception.   Grandstaff  has   not
challenged that ruling on appeal.
          Grandstaff  argues  that  the probative  value  of  the
evidence was outweighed by its prejudicial impact.  He notes that
Medicaid  fraud  investigator Rebecca Starry testified  that  the
clinic  conducted  an unsolicited review of Grandstaffs  patients
records,  that  she  did  not  know the  basis  for  the  clinics
calculations,  and that she could not answer what,  if  anything,
the  refund  proved.  But Grandstaff did not argue at trial  that
the  evidence was more prejudicial than probative, so  the  issue
was  not preserved.114  The argument is also without merit.  Dean
testified  that refunds were made because the committee  believed
it  was  the  appropriate diligent thing to do,  because  it  was
unclear  to  the  committee  whether  or  not  the  billing   was
appropriate.  No one testified, and the State did not argue, that
the   refunds  accurately  reflected  the  amount  Medicaid   was
overbilled.   Judge Beistline offered to instruct the  jury  that
the  fact  that the clinic refunded the money billed for specific
services  did not necessarily establish that those services  were
without medical purpose, and that this decision was for the jury.
But Grandstaffs trial attorney did not request the instruction.
          Even  if  this  evidence was admitted  improperly,  any
error  was harmless.  As noted above, Dean testified that it  was
unclear  to  the  committee whether or not the  billing  for  any
particular service was appropriate.  While cross-examining  Dean,
Grandstaffs  trial attorney showed that many of the services  for
which  refunds  were paid were not included in the theft  counts.
The  attorney  repeated this point in closing, arguing  that  the
services for which the clinic refunded Medicaid were inconsistent
with  the  services  that  Dr. Parran determined  lacked  medical

          We uphold the superior courts denial of a mistrial
          Grandstaff   argues  that  Dr.  Parran  inappropriately
referred  to sexual contact between Grandstaff and four  patients
when   only  S.Y.  and  S.P.  testified  to  Grandstaffs   sexual
misconduct.   Grandstaff contends that admission of  evidence  of
unindicted sexual misconduct is reversible error.115
          On  direct examination, the prosecutor asked Dr. Parran
a  series  of  hypothetical questions about  a  physician  having
sexual  relations with four patients; Dr. Parran  testified  that
there would be no legitimate medical purpose for sexual relations
between a doctor and his patients.  On cross-examination, defense
counsel asked Dr. Parran if it would have helped him to interview
any  of  these patients.  Dr. Parran said no, because  these  are
four  patients, all with well-documented histories of  addiction,
all  with evidence in their charts document[ing] that theyre  out
of  control  intermittently with their use of  of the  prescribed
controlled drugs, and  and all having had alleged advances or  or
          sexual relationships with the doctor.
          Grandstaff  moved  for  a mistrial,  arguing  that  Dr.
Parran  could  not  testify that Grandstaff  had  sex  with  four
patients when he was only charged with sexual misconduct with two
patients.  The court denied the motion, finding that the  comment
was a passing reference made as Dr. Parran explained the basis of
his  conclusion that there was no medical purpose in  Grandstaffs
treatment of these patients; Judge Beistline offered to give  the
jury  a  limiting instruction, but Grandstaff declined the offer.
Further,  Dr.  Parran did not state that Grandstaff actually  had
sexual  relations with all four patients, but only that all  four
claimed  to  have  had sexual relationships with Grandstaff.  And
with  respect  to  E.S.,  the jury acquitted  Grandstaff  of  all
charges  relating to E.S.  Under these circumstances, we conclude
that  Judge  Beistline  did not abuse his discretion  in  denying
Grandstaffs motion for a mistrial.

          The jury instructions regarding medical purpose
          Grandstaff  argues that there was a flaw  in  the  jury
instructions relating to the charges of unlawful distribution  of
controlled   substances.   The  State  charged  that   Grandstaff
unlawfully delivered controlled substances to the women  in  this
case  by  writing prescriptions for them when he knew that  their
use of controlled substances would serve no medical purpose.116
          Grandstaff  argues that Jury Instruction  18  misstated
the  law  by defining an unlawful prescription as one  without  a
legitimate medical purpose.  The instruction stated, in pertinent
               The   defendant  in  this  case  was   a
          licensed  physician during the  time  periods
          alleged in the Indictment.  As such,  he  was
          permitted to treat patients and to cause  the
          delivery of controlled substances to them  by
          pharmacists,  for  treatment  by   means   of
          prescriptions,   provided   he   issued   the
          prescriptions lawfully.  The prescriptions in
          this case were unlawfully issued if there did
          not  exist  a legitimate medical purpose  for

               A  legitimate  medical purpose  in  this
          context  was  present if (1)  the  defendants
          purpose  in  issuing the prescription(s)  was
          medical,   (2)   the   prescription(s)    was
          reasonably  necessary for  treatment  of  the
          patients  illness  or  injury,  and  (3)  the
          prescription(s) was issued by  the  defendant
          while  acting in good faith within the  usual
          course  of his professional practice  and  in
          accordance  with a standard of  medical  care
          generally recognized and accepted within  the
          medical community.

          The drug counts in Grandstaffs indictment were based on
          AS 17.30.080, which makes it a crime to distribute scheduled
drugs other than for a medical purpose.  Alaska Statute 17.30.080
provides, in pertinent part:
               Unlawful  administration,  prescription,
          and  dispensation  of controlled  substances.
          (a)   A controlled substance classified under
          federal  law or in a schedule set out  in  AS
          11.71.140  11.71.190 may not be administered,
          prescribed,  dispensed, or distributed  other
          than for a medical purpose.
               (b)  A  person who violates (a) of  this
          section,   or   who  otherwise  manufactures,
          distributes, dispenses, or conducts  research
          with  a  controlled substance  in  the  state
          without  fully complying with 21  U.S.C.  811
          830    (Controlled   Substances   Act),   and
          regulations adopted under those sections,  is
          guilty  of  misconduct involving a controlled

          Grandstaff contends that the jury instructions relating
to these unlawful delivery counts allowed the jury to convict him
based merely on proof that he committed malpractice when he wrote
these   prescriptions   i.e.,  proof  that,  in   retrospect,   a
reasonable doctor in Grandstaffs situation would not have written
the   prescriptions.    Grandstaff  further   argues   that   the
instructions allowed the jury to convict him on proof that he had
some  non-medical purpose for distributing the drugs in  addition
to a proper medical purpose.
          In  the instruction defining the elements of the crime,
the jury was told that  the State had to prove three things:  (1)
that Grandstaff knowingly delivered controlled substances to  the
women;  (2)  that  his delivery of controlled substances  had  no
medical  purpose; and (3) that Grandstaff recklessly  disregarded
the fact that there was no medical purpose for the delivery.
          Grandstaff  does  not  challenge the  wording  of  this
instruction.   (In  fact, this instruction used  essentially  the
same  language  that  Grandstaff proposed.)  However,  Grandstaff
argues  that  there  are  substantial errors  in  the  subsidiary
instructions relating to these drug-distribution charges.
          Grandstaffs  first argument centers  on  the  purported
distinction  between a medical purpose and a  legitimate  medical
purpose.  As noted above, the elements instruction told the  jury
that  the  State was obliged to prove that there was  no  medical
purpose  for  distributing the drugs to the women.   However,  an
accompanying  instruction  explained  that  Grandstaffs  act   of
writing prescriptions for the women was unlawful if there did not
exist a legitimate medical purpose for [the prescriptions].
          This  same  accompanying instruction then  stated  that
prescriptions have a legitimate medical purpose only if  (1)  the
[doctors] purpose in issuing the prescription(s) was medical, (2)
the prescription(s) [were] reasonably necessary for treatment  of
the  patients  illness  or  injury, and (3)  the  prescription(s)
[were]  issued by the [doctor] while acting in good faith  within
the  usual  course of ... professional practice and in accordance
with  a standard of medical care generally recognized and adopted
within the medical community.
          Grandstaff   argues   that,   when   these   two   jury
instructions  are read together, the jurors would conclude  that,
even  if  Grandstaff honestly believed that there was  a  medical
purpose   for   writing  the  prescriptions,  Grandstaff   should
nevertheless  be  convicted if the State proved that  Grandstaffs
decision  to  write the prescriptions fell below the standard  of
practice  generally  recognized and adopted  within  the  medical
community,  and  that, viewed objectively and in retrospect,  the
drugs  were not reasonably necessary for treatment of the [womens
          If  Grandstaffs  analysis of the two jury  instructions
were  correct, his case would pose a significant question  as  to
whether  he  received  due process of law.  However,  Grandstaffs
analysis is not correct.
          It  is  true  that  the challenged instruction  defines
medical  purpose in terms of the standard of practice  recognized
and  accepted  in  the  medical community.  But  this  definition
relates  only to the second of the three elements listed  in  the
elements   instruction.   As  explained   above,   the   elements
instruction  conveyed that the State was required  to  prove  not
only   that  there  was  no  medical  purpose  for  writing   the
prescriptions,  but  also that Grandstaff recklessly  disregarded
this fact.
          In other words, the jurors were told that the State had
to  prove  either that Grandstaff knew that there was no  medical
purpose for prescribing the drugs to the women, or at least  that
Grandstaff   was   subjectively   aware   of,   and   consciously
disregarded,  a substantial and unjustifiable risk  that  he  was
committing  malpractice when he wrote these prescriptions   i.e.,
that  his  prescription of the drugs to the women fell below  the
acceptable standard of practice within the medical community.117
          Because the elements instruction required the State  to
prove  this  culpable  mental state, there  was  no  danger  that
Grandstaff  would  be  convicted of  felonies  for  honestly  but
incompetently prescribing controlled substances.
          Grandstaff  also  argues  that  the  jury  instructions
allowed  the  jury  to  convict him if he  had  some  non-medical
purpose  for  writing the prescriptions, even if he  also  had  a
proper  medical  purpose  for doing so.   Again,  if  Grandstaffs
analysis  of  the  instructions were correct,  this  would  raise
significant due process problems.  Presumably doctors often  have
two or more purposes for writing prescriptions.  For instance,  a
young  doctor  may  prescribe a medication for  completely  valid
medical   reasons,  but  the  doctor  may  also  hope  that,   by
prescribing a medication that will cure the patient or  at  least
ease  the  patients symptoms,  the patient will  be  prompted  to
recommend  the young doctor to friends and family   thus  helping
the  doctors  practice grow.  It would seem strange (not  to  say
unconscionable)  to  convict the doctor of a  felony  in  such  a
          But  the  jury instructions did not say that Grandstaff
          could be convicted if he had some purpose for writing the
prescriptions  in addition to a valid  medical purpose.   Rather,
the  elements instruction required the State to prove that  there
was  no valid medical purpose for writing the prescriptions   and
that  Grandstaff  knew  of, or was at least reckless  concerning,
this circumstance.  We therefore conclude that this challenge  to
the jury instructions also has no merit.
          As  noted earlier, the statute in effect at the time of
Grandstaffs  offense prohibited him from writing  a  prescription
for controlled substances for any reason other than for a medical
purpose.   Grandstaff argues that the court  erred  by  departing
from  this  statutory language and defining  medical  purpose  as
legitimate medical purpose.  He argues that a decision to write a
prescription could fall below the generally accepted standard  of
care  and  still  serve some medical purpose   for  instance,  an
experimental, research, or other non-therapeutic purpose.
          Grandstaffs  argument  seems  to  be  premised  on  the
implicit  assertion that the prescription of drugs for authorized
medical  research  or  clinical trials  does  not  qualify  as  a
prescription for a legitimate medical purpose.  Grandstaff  cites
no authority supporting this assertion, and we find the assertion
unconvincing.  The prescription of controlled substances  in  the
course of authorized medical research and clinical trials appears
to  fall squarely within the realm of legitimate medical purposes
and to meet the accepted standard of medical care.
          Grandstaffs argument is also premised on the  assertion
that  there is a significant difference between a medical purpose
and  a  legitimate  medical purpose.  We  believe  that,  in  the
context  of  AS 17.30.080, these phrases are equivalent.   It  is
extremely  unlikely  that  the  legislature,  in  enacting   this
statute,  intended  to exempt (that is, intended  to  endorse  or
authorize) the writing of prescriptions for illegitimate  medical
          But  even assuming that, in some contexts, there  might
be  a  meaningful  difference between a  medical  purpose  and  a
legitimate  medical  purpose, there was no error  in  this  case.
Grandstaff did not argue at trial  nor does he argue in his brief
to  this court  that he wrote the challenged prescriptions for  a
non-conformist medical purpose that was not generally accepted by
the  medical community.  Rather, Grandstaff claimed that he wrote
the  prescriptions for valid therapeutic reasons that the medical
community recognized as legitimate.  He pointed to evidence  that
other doctors prescribed the same or similar medications for  the
conditions he was treating in his patients.
          Having  heard  Grandstaffs evidence and  argument,  the
jury  rejected this claim.  And given this evidence and argument,
we  conclude that the jurys decision would have been no different
if  the  trial  judge  had  instructed the  jury  in  the  manner
Grandstaff requested.

          The  variance claim regarding the second-degree  sexual
assault conviction
          Grandstaff  contends that there was  a  fatal  variance
between  the conduct he was convicted of in Count 68, the second-
          degree sexual assault of S.P., and the charge in the indictment.
          The  State  instructed the grand jury that although  it
would hear testimony about multiple sexual encounters, the second-
degree sexual assault charged in Count 68 stemmed from the  first
alleged nonconsensual sexual act involving S.P. that occurred  in
an exam room at Grandstaffs clinic.  S.P. testified at grand jury
that  she  started seeing Grandstaff in October  or  November  of
1996;  that  the initial visits were characterized  by  a  normal
doctor-patient  relationship;  and  that  this  changed  when  he
fondled  her breast, without her consent, some time in late  1996
or  early  1997.   When the grand jury returned  the  indictment,
Count  68  stated, That between the approximate dates of  October
31,  1996 and March 31, 1997, at or near Fairbanks in the  Fourth
Judicial  District,  State  of  Alaska,  Stephen  Grandstaff  did
unlawfully  and  knowingly  engage in sexual  contact  with  S.P.
without her consent.
          At  trial, S.P. testified that Grandstaff first fondled
her  breasts in late October or early November of 1996, and  that
they  began  having intercourse in November or December  of  that
year.   On  redirect,  she  confirmed  that  the  first  incident
occurred  on her third or fourth visit, sometime after her  first
visit  on  October  31, 1996, and before she was  diagnosed  with
herpes on March 27, 1997.
          Grandstaff argues that a variance occurred because S.P.
told   the   grand  jury  that  Grandstaff  first   touched   her
inappropriately  in  late 1996 or early 1997,  and  testified  at
trial  that the first incident occurred in late October or  early
November  of  1996.  Because S.P. testified about more  than  one
sexual act, Grandstaff argues that he may have been convicted  of
a  different  offense  than  the  one  in  the  indictment.   The
prosecutor  specified in his closing, however,  that  the  sexual
assault occurred when Grandstaff touched her without her consent,
when he made his move on her.
          Grandstaff relies on Simpson v. State,119 a case  where
this  court  reversed Simpsons conviction for sexual abuse  of  a
minor because of a variance.  The victim in Simpson described two
distinct  incidents;  trial testimony indicated  that  the  first
incident  was  a  touching,  while the  second  incident  was  an
attempted touching.120  While the indictment specified the date of
the second incident, Simpson was convicted of the first incident.121
We stated that while an indictment is sufficient which charges  a
specific  incident,  the precise date of  which  the  witness  is
uncertain, the witness must nevertheless have a specific incident
in mind.122  In reversing the conviction, we held that Simpson was
convicted of a different incident than the one specified  in  the
          In  Grandstaffs case, the indictment charges a specific
incident, the date of which was not precise.  The State specified
to both the grand jury and the trial jury that the sexual assault
count  was for the first time Grandstaff sexually contacted  S.P.
without her consent.
          A variance between the date specified in the indictment
and  the  date shown by the evidence at trial is not  a  material
defect  unless the defendant can show he was actually  prejudiced
          in his ability to prepare or present his defense at trial.124
Grandstaff  has  alleged  no such prejudice.   We  conclude  that
Grandstaff has not shown a variance that requires reversal of the
conviction on this count.

          Sufficient evidence was admitted to sustain the  sexual
assault convictions
          Grandstaff argues that the evidence admitted  at  trial
was  not sufficient to sustain the convictions for Count 26,  the
first-degree  sexual assault of S.Y., and Count 68,  the  second-
degree  sexual assault of S.P.  Evidence is sufficient to support
a  conviction  when  reasonable jurors could  conclude  that  the
defendants guilt has been established beyond a reasonable doubt.125
When  we  review  the  sufficiency of the evidence  supporting  a
conviction,  we  view the evidence and the reasonable  inferences
from the evidence in the light most favorable to the State.126
          Grandstaff  analyzes the evidence  in  the  light  most
favorable  to  himself by focusing on the testimony  of  the  two
victims  and  attempting to impeach their testimony.   He  argues
that  S.Y.s  testimony is full of contradictions, and that  S.P.s
uncertainty  about the date of Grandstaffs first  sexual  contact
with her renders her memory too faulty to be reliable.
          S.Y.  testified  that she passed out  at  the  Westmark
Hotel   after  taking  a  combination  of  Stadol  and  Mepergan.
Although she told Grandstaff before she passed out that  she  did
not  want to have sex, when she regained consciousness,  she  was
naked and Grandstaff was engaged in sexual intercourse with  her.
Dr.  Parran testified that the combination of drugs S.Y. ingested
would have made S.Y. very sleepy and sedated, as well as mentally
altered.  S.Y.s mother testified that S.Y. called her that night,
and  that  her  speech was slurred and incoherent.  S.Y.s  mother
also  testified  that Grandstaff called the next day,  asked  how
S.Y. was doing, and then hung up.
          S.P.  testified  that  on one of her  first  visits  to
Grandstaff,  when  he  was listening with a  stethoscope  on  her
torso,  he  began to fondle her breasts.  In addition, he  kissed
her neck, her mouth, and her breasts.  She asked him to stop, but
he continued.
          Grandstaff argues that this evidence is insufficient to
support  the  convictions for sexual assault.  This  argument  is
without merit because Grandstaff views the evidence in the  light
most  favorable  to  his  argument, and not  in  the  light  most
favorable  to  sustaining the convictions.  Grandstaffs  argument
consists  of  reasons why the jury should not have believed  S.Y.
and  S.P.   But  after  hearing  the  evidence,  the  jury  found
Grandstaff  guilty  of  the charges.   We  find  that  there  was
sufficient evidence to support the convictions.

          Grandstaffs attacks on his sentencing and his sentence
          Judge  Beistline imposed an 8-year term  with  3  years
suspended for the first-degree sexual assault of S.Y.  He imposed
a 7-year term with 3 years suspended for the second-degree sexual
assault of S.P.  For each conviction for second-degree misconduct
involving a controlled substance, Judge Beistline imposed  a  10-
          year term with 5 years suspended, to be served concurrently.  For
each   conviction  for  fourth-degree  misconduct   involving   a
controlled substance, Judge Beistline imposed a 3-year term  with
1  year  suspended, to be served concurrently.  For each  of  the
three  theft  convictions, Judge Beistline imposed a 3-year  term
with  1 year suspended, to be served concurrently.  The composite
sentence  was a 34-year term with 15 years suspended,  a  19-year
term  to serve.  Grandstaff advances several arguments about  his
sentencing and sentence.
          At  sentencing,  the State called two other  women  who
were  Grandstaffs  former patients to testify.   Their  testimony
described misconduct on Grandstaffs part that was similar to  the
misconduct for which the jury convicted him.
          C.T.   testified   that  she  sought   treatment   from
Grandstaff   for  post-traumatic  stress  syndrome   and   Valium
addiction.  At one point, Grandstaff conducted a pelvic exam, and
touched  C.T.  in  a way that made her feel uncomfortable.   When
asked  on cross-examination if she believed Grandstaff was trying
to   sexually  assault  her,  C.T.  replied,  I  think  that  Dr.
Grandstaff  was  was coming to that.  I think that  I  was  being
groomed  for  a  sexual  assault by Dr.  Grandstaff.   Grandstaff
argues  that  C.T.s  use  of  the word  groomed  proves  she  was
obviously  coached by the prosecution, and that the court  should
have disregarded her testimony.
          S.L.  testified  that  she was hospitalized  after  she
overdosed on the medications prescribed by Grandstaff.  When  she
awoke  in her hospital bed the next morning, though she was  very
groggy  ...  and not quite awake, she felt as if  she  was  being
touched between her legs.  She was shocked to discover Grandstaff
sitting  in  her room with the door closed.  Grandstaff  contends
that  S.L. did not present verified reliable evidence of a sexual
          A  trial judge may consider evidence of prior uncharged
misconduct  at  a  defendants sentencing  if  the  misconduct  is
verified.127  Both C.T. and S.L. testified under oath,  and  both
were cross-examined by defense counsel.  Judge Beistline did  not
err when he considered their testimony during sentencing.128
          In  his  reply  brief,  Grandstaff  argues  that  Judge
Beistlines  consideration of prior uncharged misconduct  violates
Blakely v. Washington129 because the trial judge made this finding
and  not  a  jury.   Because this argument  is  first  raised  in
Grandstaffs reply brief, we will not address it in this appeal.130
We  ruled in Walsh v. State131 that a defendant may proceed under
Criminal  Rule 35(a) to raise a claim that a sentence is  illegal
because of a violation of Blakely.132
          Grandstaff  argues  that Judge  Beistlines  finding  of
statutory aggravating factor AS 12.55.155(c)(5) (Grandstaff  knew
or should have known that the victim was particularly vulnerable)
as  to  Count  26, the first-degree sexual assault of  S.Y.,  was
contrary to AS 12.55.155(e).  That statute provides that  [i]f  a
factor  in  aggravation  is a necessary element  of  the  present
offense  ...  that  factor  may not  be  used  to  aggravate  the
presumptive  term.   Grandstaff  bases  his  argument  on   Judge
Beistlines   comment   during   sentencing   that   the   victims
          vulnerability is an important part of the underlying crime.
          But  Judge  Beistlines comment regarding a circumstance
often  present  during a sexual assault does not alter  the  fact
that the victims vulnerability is not a necessary element of  the
offense  of  first-degree sexual assault.  To prove  first-degree
sexual assault, the State must prove that the defendant knowingly
engaged  in sexual penetration while recklessly disregarding  the
victims  lack  of  consent to that penetration.133   The  victims
vulnerability  is not a necessary element of first-degree  sexual
assault,  nor  was it included in the jury instruction  for  this
count.    Furthermore,   even  though   Judge   Beistline   found
aggravating   factor  (c)(5)  and  the  parties   stipulated   to
aggravating  factor  (c)(18)(B), Judge  Beistline  also  found  a
mitigating  factor and imposed a mitigated sentence, 5  years  to
serve with an additional 3 years suspended.
          Grandstaff  argues that it was an abuse  of  discretion
for  Judge  Beistline  to  impose a  7-year  term  with  3  years
suspended on Count 68, the second-degree sexual assault  of  S.P.
But  Grandstaff  does not cite any authority for  this  argument.
And  it  is not sufficient to note, as Grandstaff did,  that  the
sentence  for  this  count was almost as harsh  as  the  sentence
imposed for the first-degree sexual assault charge.
          Ultimately, the issue we must consider when a defendant
is sentenced for several crimes is not the individual sentence on
each   count.   The  starting  point  of  the  analysis  in  this
circumstance  is  the  presumptive term for the  defendants  most
serious  crime  in this case, first-degree sexual assault,  which
had an 8-year presumptive term.  That term is a benchmark that is
not  to be exceeded without good reason.134  Judge Beistline  was
aware  of  this  case law.  And he concluded that in  Grandstaffs
case,  there were several good reasons to exceed that  benchmark:
Grandstaffs  many  convictions, the  breach  of  trust  with  his
patients, and the need to protect the public.
          Next,   Grandstaff  complains  that   Judge   Beistline
erroneously  found  that aggravating factor (c)(25)  (Grandstaffs
convictions involved large quantities of a controlled  substance)
applied  to  Grandstaffs convictions for misconduct  involving  a
controlled substance.  Judge Beistline based this finding on  the
large number of transactions, the cumulative amount of drugs, and
the  extended  period of time involved and also  considering  the
fact that defendant was prescribing the drugs in order to control
his  patients and obtain sexual favors.  For these same  reasons,
he  rejected Grandstaffs proposed mitigators, (d)(9) (Grandstaffs
conduct  was  the  least  serious within the  definition  of  the
offense)  and  (d)(14)  (Grandstaffs convictions  involved  small
quantities of a controlled substance).135
          Grandstaff  argues that, because each  prescription  or
delivery  involved a small amount, the large quantity aggravating
factor  was unjustified.  But the question of whether the  amount
of  a controlled substance is large or small must ... be resolved
by  the  sentencing  court  as a factual  matter,  based  on  the
totality  of  the  evidence  in  the  case  and  on  the   courts
discretion,  as  informed by the totality of  its  experience.136
Judge  Beistline  analyzed each class of  Grandstaffs  controlled
          substance convictions together and imposed concurrent terms for
each class.  As the record reveals, there were a large number  of
prescriptions  and deliveries.  And cumulatively, the  amount  of
drugs  was  large  and the prescriptions and deliveries  occurred
over a long time.  Judge Beistline did not err when he found  the
large quantity aggravating factor.
          Grandstaff  further argues that the court  should  have
found  the  least serious conduct mitigator, as the patients  had
real  medical conditions for which they sought drugs and received
drugs  from  other doctors.  Again, Grandstaff  offers  no  legal
authority  in  support of his position.  Moreover, regardless  of
the  womens  medical needs, Judge Beistline found that Grandstaff
prescribed the drugs in order to control his patients and  obtain
sexual favors.  And in each count, the jury found that there  was
no  medical  purpose  for the prescription  or  delivery  of  the
conrolled substances.  These circumstances do not establish least
serious conduct as a matter of law.
          Judge  Beistline  imposed 3 years imprisonment  with  1
year  suspended on each of the three second-degree  theft  counts
and  imposed  the  theft terms concurrently. These  theft  counts
covered  Medicaid  funds  expended  for  prescriptions  and   for
appointments  with  Grandstaff.   Grandstaff  argues  that   this
sentence was inappropriate for a first felony conviction, as  the
presumptive  term  for  a  second felony  offender  is  2  years.
Grandstaff  also contends that the sentence is excessive  because
the  amount  involved  was scarcely $5,000.  Second-degree  theft
involves  property valued at $500 to $25,000, and  the  composite
total loss in this case was in excess of $5,000.  But again, when
a  defendant  is sentenced for multiple convictions,  this  court
reviews   the  composite  sentence  as  a  whole.137    Reviewing
Grandstaffs  sentence for the theft counts from this perspective,
the  composite  3-year sentence with 1 year suspended  for  three
counts of second-degree theft is not excessive.
          Finally, Grandstaff contends that his composite term is
excessive.  He notes that under Farmer v. State,138 the sentencing
court  must  have good reason for exceeding the presumptive  term
for  the most serious offense.139  In this case, Grandstaffs most
serious  offense is first-degree sexual assault, an  unclassified
felony with a presumptive 8-year term.140  As we discussed above,
Judge  Beistline  gave several reasons for  imposing  a  sentence
substantially  longer  than 8 years.  He noted  Grandstaffs  many
convictions, his abuse of his patients trust, and the  misuse  of
his medical privileges to satisfy his personal needs.
          When we review a composite sentence imposed for several
criminal  convictions, we assess whether the defendants  combined
sentence  is clearly mistaken, given the whole of the  defendants
conduct and history.141   Grandstaffs composite 19-year sentence is
a  substantial period of imprisonment.  But Grandstaff repeatedly
abused  his  duty  of care to his patients and manipulated  their
dependence  on  controlled substances  for  his  personal  sexual
satisfaction.  He manipulated the Medicaid program to pay for the
victims  office visits and prescriptions.  Grandstaffs misconduct
spanned several years and involved multiple victims.  Considering
all  of Grandstaffs misconduct and history, we conclude that  the
          sentence imposed by Judge Beistline is not clearly mistaken.142

          The judgment of the superior court is AFFIRMED.
  1  See  State  v.  Glass, 583 P.2d 872, 881 (Alaska  1978),  on
rehg,  596  P.2d  10  (Alaska  1979)  (holding  that  the  Alaska
Constitution  requires  police to obtain  judicial  authorization
before secretly recording a persons private conversations).

  2 AS 11.41.410(a)(1).

  3 AS 11.41.420(a)(1).

  4 AS 11.46.130(a)(1).

  5 AS 11.71.020(a) and AS 17.30.080.

  6 AS 11.71.040(a)(1) and AS 17.30.080.

  7 597 P.2d 154, 164-66 (Alaska 1979).

  8 State v. McDonald, 872 P.2d 627, 639 (Alaska App. 1994).

  9 500 P.2d 238 (Alaska 1972).

  10 Id. at 242 n.14 (citation omitted).

  11 554 P.2d 460 (Alaska 1976).

  12 Id. at 465 n.22.

  13  See  Sheldon  v. State, 796 P.2d 831, 836-37  (Alaska  App.

  14 See Gaona v. State, 630 P.2d 534, 537 (Alaska App. 1981).

  15 See Jerrel v. State, 851 P.2d 1365, 1372 (Alaska App. 1993).

  16 See Sheldon, 796 P.2d at 834.

  17 Pease v. State, 54 P.3d 316, 322 (Alaska App. 2002).

  18 Id.

  19 Id.

  20 335 F.2d 987 (1964).

  21 Id. at 989.

  22 538 P.2d 1006 (Alaska 1975).

  23 Nell v. State, 642 P.2d 1361, 1364 (Alaska App. 1982).

  24 Id.

  25 See id. at 1365.

  26  See  Carr v. State, 840 P.2d 1000, 1005 (Alaska App. 1992);
Thiel  v.  State,  762  P.2d  478,  482-83  (Alaska  App.  1988),
abrogated  on  other grounds by Matthew v. State,  152  P.3d  469
(Alaska App. 2007).

  27 See Thiel, 762 P.2d at 482-83.

  28  Sergeant  Geier testified on cross-examination that  during
the first, eight-minute conversation, S.Y.s car was parked behind
Grandstaffs  car, but he could not see whether  or  not  she  was
blocking him in.  Grandstaffs assertion that S.Y. blocked him  in
seems to refer to this conversation and not to the second, forty-
three minute conversation, recorded later on the same day.

  29  See  Collier v. Anchorage, 138 P.3d 719, 720  (Alaska  App.
2006) (The right to counsel under the Fifth Amendment only arises
during custodial interrogation.).

  30 998 P.2d 1040 (Alaska 2000).

  31  See  S.B.  v. State, 614 P.2d 786 (Alaska 1980);  Smith  v.
State, 787 P.2d 1038 (Alaska App. 1990).

  32 Beavers, 998 P.2d at 1048.

  33  Alaska App. Memorandum Opinion and Judgment No. 2938  (June
29, 1994), 1994 WL 16196195.

  34 Id. at 2, 1994 WL 16196195 at *1.

  35 Id. at 12-13, 1994 WL 16196195 at *5.

  36  Id.  at  13,  1994 WL 16196195 at *5-6 (internal  citations

  37 Beavers, 998 P.2d at 1042.

  38 Id. at 1041.

  39 See id. at 1046.

  40 See State v. Malkin, 722 P.2d 943, 947 (Alaska 1986).

  41  Katmailand,  Inc. v. Lake and Peninsula Borough,  904  P.2d
397,  402 n.7 (Alaska 1995); Petersen v. Mutual Life Ins. Co.  of
New  York,  803 P.2d 406, 410 (Alaska 1990); Wren v.  State,  577
P.2d 235, 237 n.2 (Alaska 1978).

  42 925 P.2d 1057 (Alaska App. 1996).

  43 Id. at 1064-66.

  44 Id. at 1065.

  45 Id. at 1066.

  46 56 P.3d 675, 680 (Alaska App. 2002).

  47  See  State  v. Rivers, 146 P.3d 999, 1002-03  (Alaska  App.

  48 See Beavers, 998 P.2d at 1044.

  49 AS 18.23.040.

  50  B.  Abbott Goldberg, The Peer Review Privilege:  A  Law  in
Search of a Valid Policy, 10 Am.J.L. & Med. 151, 154 (1984).  See
also Susan O. Scheutzow & Sylvia Lynn Gillis, Confidentiality and
Privilege of Peer Review Information:  More Imagined Than Real, 7
J.L.  &  Health 169, 182 (1992-93) (accord); People  v.  Superior
Court  (Memorial Medical Center of Long Beach),  286  Cal.  Rptr.
478,  483  (Cal.  Ct.  App. 1991) (noting that  Californias  peer
review  privilege is an attempt to prevent a chilling  effect  on
the  accurate  evaluation of health care facilities  which  would
lead to a decline in the quality of health care).

  51 AS 18.23.030(a).

  52 Id.

  53  2A  Norman  J. Singer, Statutes and Statutory  Construction
46:05, at 154 (6th ed. 2000).

  54 See H.B. 574 (1976).

  55  Memo  from  Thomas L. Conley, Chair of  the  State  Medical
Board,  to  Representative John Sund,  sponsor  of  H.B.  70,  on
proposed   revisions  to  AS  08.64  (dated  December  3,   1986)
(contained in House Judiciary Committee file on H.B. 70).

  56 Ch. 87,  16, SLA 1987; see also ch. 48,  16, SLA 1983.

  57  In  his  statement,  Conley refers to  the  confidentiality
provisions  in  AS 18.23.020(d).  AS 18.23.020 has no  subsection
(d);  nor,  at the time, did AS 18.23.030.  It appears  therefore
that  Conley misspoke, as the only subsection in former AS  18.23
that  discussed  whether peer review information was  subject  to
subpoena or discovery was AS 18.23.030(a).

  58  Committee Minutes, House Judiciary Committee discussion  of
H.B. 70, Log No. 335-380, and audio tape (March 5, 1987).

  59  2B  Norman  J. Singer, Statutes and Statutory  Construction
49:10, at 117-18 (6th ed. 2000).

  60  Committee Minutes, House Judiciary Committee discussion  of
H.B. 70, Log No. 503, and audio tape (March 5, 1987).

  61  Handwritten  letter  from Conley  to  Representative  Sund,
sponsor  of  H.B.  70 (dated March 5, 1987) (contained  in  House
Judiciary Committee file on H.B. 70).

  62 AS 18.23.030(d); ch. 87,  19, SLA 1987 (emphasis added).

  63 In re Lieberman, 646 N.W.2d 199 (Mich. Ct. App. 2002).

  64 Id. at 201-02 (quoting Mich. Comp. Laws  333.21515 (1979)).

  65 Russell v. Anchorage, 706 P.2d 687, 693 (Alaska App. 1985).

  66 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967).

  67 Id., 385 U.S. at 494, 87 S. Ct. at 617.

  68 Id., 385 U.S. at 495, 87 S. Ct. at 617-18.

  69 Id., 385 U.S. at 499, 87 S. Ct. at 620.

  70 146 P.3d 999 (Alaska App. 2006).

  71 Id. at 1005.

  72 622 P.2d 448 (Alaska 1981).

  73 Id. at 456-57, 459.

  74 777 P.2d 1169 (Alaska App. 1989).

  75 Id. at 1176-77 (quoting United States v. Hale, 422 U.S. 171,
177, 95 S. Ct. 2133, 2137, 45 L. Ed. 2d 99 (1975)).

  76 Id. at 1174.

  77 59 P.3d 760 (Alaska App. 2002).

  78 Id. at 768.

  79  Dorman,  622  P.2d at 452; Silvernail, 777  P.2d  at  1172;
Hamilton, 59 P.3d at 767.

  80 Silvernail, 777 P.2d at 1171.

  81 Id. at 1172.

  82 Id. at 1173.

  83  A.R.E.  403  provides: Although relevant, evidence  may  be
excluded  if its probative value is outweighed by the  danger  of
unfair  prejudice,  confusion of the issues,  or  misleading  the
jury,  or  by  considerations of undue delay, waste of  time,  or
needless presentation of cumulative evidence.

  84 Silvernail, 777 P.2d 1175-76.

  85 Id. at 1174.

  86 Id.

  87 658 P.2d 119 (Alaska 1983).

  88 Id. at 121-22.

  89 See id. at 120.

  90 83 P.3d 1077 (Alaska 2004).

  91 Id. at 1081

  92 Id.

  93 A.R.E. 702 (emphasis added).

  94 Samaniego, 83 P.3d at 1088 (original brackets omitted).

  95 Id. at 1088-89.

  96 See Love v. State, 457 P.2d 622, 629-31 (Alaska 1969).

  97 See Carr, 840 P.2d at 1005; Thiel, 762 P.2d at 482-83.

  98 See Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980).

  99 See Hamilton, 59 P.3d at 769.

  100 76 P.3d 398 (Alaska App. 2003).

  101 748 P.2d 771 (Alaska App. 1988).

  102 Id. at 774.

  103  Id.  A.R.E. 404(b)(1) provides:  Evidence of other crimes,
wrongs,  or  acts  is  not admissible if  the  sole  purpose  for
offering  the evidence is to prove the character of a  person  in
order to show that the person acted in conformity therewith.   It
is,  however, admissible for other purposes, including,  but  not
limited  to,  proof of motive, opportunity, intent,  preparation,
plan, knowledge, identity, or absence of mistake or accident.

  104 Stevens, 748 P.2d at 775.

  105 See Raphael v. State, 994 P.2d 1004, 1015 (Alaska 2000).

  106 999 P.2d 771 (Alaska 2000).

  107 Id. at 774.

  108 Id. at 773.

  109 Id. at 775.

  110 Bingaman, 76 P.3d at 414-15.

  111 Id. at 401-02.

  112 See A.R.E. 803(6).

  113 See A.R.E. 801(c).

  114 See Groff v. Kohler, 922 P.2d 870, 875 (Alaska 1996).

  115  See  Haakanson v. State, 760 P.2d 1030, 1038 (Alaska  App.
1988)  (finding error in admission of evidence of sexual  contact
with  two  victims  not named in indictment).   Grandstaff  cites
three  other  cases  from  the 1980s in which  the  admission  of
evidence  of unindicted sexual misconduct was held to  be  error.
All  three are superseded by A.R.E. 404(b)(2) or (3) and  are  no
longer good law.

  116 See AS 17.30.080(a).

  117 See AS 11.81.900(a)(3) (defines recklessly).

  118  State  v. Vakas, 744 P.2d 812, 815 (Kan. 1987) (Whether  a
controlled  substance  is  prescribed for  a  legitimate  medical
purpose  as  opposed  to  a  medical  purpose  is  to  create   a
distinction without a difference.).

  119 705 P.2d 1328 (Alaska App. 1985).

  120 Id. at 1330.

  121 Id.

  122  Id. (quoting Covington v. State, 703 P.2d 436, 440 (Alaska
App. 1985)).

  123 Id. at 1331.

  124 Larkin v. State, 88 P.3d 153, 154 (Alaska App. 2004).

  125 See, e.g., Dorman, 622 P.2d at 453; Deal v. State, 657 P.2d
404, 405 (Alaska App. 1983).

  126 Dorman, 622 P.2d at 453.

  127  See  Nukapigak v. State, 562 P.2d 697, 701 (Alaska  1977),
affd on rehg, 576 P.2d 982, 984-85 (Alaska 1978).

  128 See id.

  129 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

  130  See McCracken v. State, 914 P.2d 893, 897 n.1 (Alaska App.

  131 134 P.3d 366 (Alaska App. 2006).

  132 Id. at 373-74.

  133  See  Reynolds v. State, 664 P.2d 621, 623-25 (Alaska  App.
1983).  See also AS 11.41.410(a).

  134 Farmer v. State, 746 P.2d 1300, 1301 (Alaska App. 1987).

  135 AS 12.55.155(d)(9) and (14), respectively.

  136 Knight v. State, 855 P.2d 1347, 1350 (Alaska App. 1993).

  137 See Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000).

  138 746 P.2d 1300.

  139 Id.

  140 AS 12.55.125(i)(1)(A).

  141  See  Neal  v. State, 628 P.2d 19, 21 & n.8 (Alaska  1981);
Comegys v. State, 747 P.2d 554, 558-59 (Alaska App. 1987).

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

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