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Phillips v. State (7/17/2009) ap-2226

Phillips v. State (7/17/2009) ap-2226

     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate

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) Court of Appeals No. A-9869
Appellant, ) Trial Court No. 3PA-06-266 CR
v. )
) O P I N I O N
Appellee. )
) No. 2226 July 17, 2009
Appeal    from    the
          Superior  Court,  Third  Judicial  District,
          Palmer, Eric B. Smith, Judge.

          Appearances:   Beth G.L. Trimmer,  Assistant
          Public  Advocate, and Rachel Levitt,  Public
          Advocate,   Anchorage,  for  the  Appellant.
          Timothy   W.  Terrell,  Assistant   Attorney
          General, Office of Special Prosecutions  and
          Appeals,  Anchorage, and Talis  J.  Colberg,
          Juneau, Attorney General, for the Appellee.

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

          BOLGER, Judge.
          John  B.  Phillips  was convicted  of  five  counts  of
second-degree  forgery,1 five counts of second- and  third-degree
theft,2  one  count of fraudulently using an access device,3  and
four  counts  of first-degree criminal impersonation.4   In  this
          appeal, Phillips argues that the trial court should have entered
acquittals  on his charges of criminal impersonation.   We  agree
that there is insufficient evidence that he damaged the financial
reputation  of  one of his victims, and that he  is  entitled  to
aquittal  on  the criminal impersonation counts related  to  that
          Phillips  also argues that the trial court  should  not
have  admitted  evidence  of  credit  cards,  checks,  and  other
documents  that belonged, or referred, to people other  than  the
victims  in  this case.  But we conclude that this  evidence  was
relevant to show Phillipss motive and knowledge, since the crimes
in this case were part of a larger identity-theft scheme.
          We  further  conclude that the conditions on  Phillipss
probation were reasonably related to his rehabilitation, but that
the  judgment incorrectly suggested that Phillips was  ineligible
for discretionary parole.

          On  December  12,  2005, Palmer  Police  Officer  James
Gipson   stopped   Phillipss  vehicle  for  traffic   violations.
Phillips  produced  his  drivers license  and  gave  the  officer
consent  to  search  the vehicles passenger  area.   During  this
search,  Gipson  noticed  an  open checkbook  containing  another
identification  card with Phillipss picture on it.   Gipson  also
saw  credit-card checks bearing the name Andrew Gray, a checkbook
apparently belonging to Dondi Sturm, and a credit card issued  to
Gwendolyn Brown.
          Based  on  this  information, Gipson later  obtained  a
warrant to search three suitcases belonging to Phillips,  and  he
found mail and checkbooks belonging to many different people,  as
well  as  computer equipment for printing color photographs.   An
inspection  of the computer hard drives showed that Phillips  was
using the equipment to manufacture fake drivers licenses.
          The  police  also searched Phillipss Anchorage  storage
unit  and  found more stolen mail, additional fake  licenses  and
state  identification  cards, and a  substantial  volume  of  new
merchandise, some of which was matched to purchases made with the
checking  accounts belonging to Sturm and Gray.  On  February  2,
2006,  in  an  interview  with Fairbanks Police  Detective  Pearl
Holston,  Phillips  confessed his participation in a  large-scale
identity-theft ring.
          Phillips   was   charged  with  forgery,   theft,   and
fraudulent use of an access device related to his use of  credit-
card  checks  stolen from Gray for purchases at the Wasilla  Wal-
Mart  on  December 8, 2005.  Phillips was charged  with  forgery,
theft,  and  criminal impersonation related  to  purchases  at  a
Wasilla  Carrs  on  December 9, 2005, using a check  stolen  from
Sturm.   Phillips  was  also  charged with  forgery,  theft,  and
criminal  impersonation for purchases he made at a  Wasilla  Fred
Meyer  on  December  10, 2005, again using a  check  stolen  from
Sturm.   Phillips  was  also  charged with  forgery,  theft,  and
criminal impersonation for purchases he made at the Wasilla Lowes
on  December  5,  2005, using a check stolen from Scott  Roberts.
Finally,  Phillips was charged with forgery, theft, and  criminal
impersonation  for additional purchases he made  at  the  Wasilla
Lowes  on  December  6, 2005, again using  a  check  stolen  from
          At  trial, the jury returned guilty verdicts  on  these
fifteen  counts,  and found three aggravating factors.   Superior
Court  Judge  Eric B. Smith imposed a composite  sentence  of  10
years imprisonment with 5 years suspended.  Phillips now appeals.

     Sufficiency of the Evidence of Criminal Impersonation
          Phillips  argues that the State presented  insufficient
evidence to support his convictions of criminal impersonation  in
the  first  degree.  Counts 4 and 7 related to  offenses  against
Sturm; Counts 10 and 14 related to offenses against Roberts.  The
precise  issue  is  whether  Phillipss misconduct  damage[d]  the
financial  reputation of these two victims.5  Under the  statute,
[f]inancial  reputation means a persons (A) ability to  obtain  a
loan  from  a  financial  institution, open  an  account  with  a
financial institution, obtain property or services on credit,  or
obtain  an  access device; or (B) creditworthiness  in  a  credit
report.6   Therefore,  in  order to prove  first-degree  criminal
impersonation, the State must prove that the alleged  victim  has
suffered  damage  to  at  least one of  these  alternatives  that
signify his financial reputation.
          When  evaluating  the sufficiency of the  evidence,  we
consider  only  the  evidence  and  reasonable  inferences   most
favorable  to  the verdict.7  We uphold a guilty verdict  when  a
reasonable  juror  could have concluded that  the  defendant  was
guilty beyond a reasonable doubt.8
          At  trial,  Phillips argued that the  State  failed  to
prove damage to Sturms financial reputation because Sturms credit
was  already affected by bankruptcy and many delinquent payments.
But  Sturm  testified that he had, nonetheless, suffered  several
adverse  effects from Phillipss misconduct.  For instance,  Sturm
testified  that the vendors Phillips paid with Sturms checks  had
sent  the  unpaid checks to collection agencies, and  that  these
agencies  had  then  contacted  Sturm  thirty  to  forty   times.
Furthermore,  Sturm explained that he bounced six checks  because
of  the  money  withdrawn  from his bank  accounts.   Sturm  also
testified that Phillipss actions ruined his credit.
          On  cross examination, Sturm admitted that the marks on
his  credit  report  that  remained delinquent  were  related  to
financial  troubles  that arose before Phillips  had  stolen  his
checks.   But on redirect examination, Sturm maintained  that  he
had  additional bad marks on his current credit report  based  on
the checks that Phillips had stolen and forged.
          When  we review the sufficiency of the evidence  for  a
criminal  conviction,  we do not weigh the  evidence  or  try  to
evaluate  witness credibility.9  Based on the evidence presented,
a  reasonable  juror could have inferred that  Phillipss  actions
harmed  Sturms  creditworthiness in a credit report,  a  type  of
damage  to  his  financial reputation that is recognized  in  the
statute.   The evidence was therefore sufficient to  support  the
counts involving Sturm.
          Phillips   also  argues  that  there  was  insufficient
evidence   to  support  his  criminal  impersonation  convictions
          related to Roberts.  At trial, Roberts testified that checks
forged  by  Phillips  bounced when Roberts  closed  his  checking
account,  and  that these checks had since been  turned  over  to
collection agencies.  But Roberts testified that he did not  know
if Phillipss actions had any effect on his credit report, that he
continued to bank without problems, that he had not attempted  to
take  out any loans, and that he did not know whether his  credit
was adversely affected.
          The  State  did  not  offer  any  other  evidence  that
Robertss  creditworthiness had been affected or that his  ability
to  obtain  a loan, open an account, obtain credit, or obtain  an
access  device had been impaired.  The State therefore failed  to
offer  sufficient  evidence from which a reasonable  juror  could
conclude that Phillips had impaired Robertss financial reputation
in any of the ways that financial reputation is defined.  We must
therefore remand this case for entry of judgments of acquittal on
counts 10 and 14.

     Evidence of Crimes Against Other Victims
          Before  his  trial, Phillips filed a motion  in  limine
challenging  the  admission of any uncharged  criminal  activity.
When  the  court  heard arguments on this motion, the  prosecutor
argued that the documents relating to other victims were relevant
to  show  Phillipss preparation, plan, identity,  knowledge,  and
motive.   In response to questioning from Judge Smith,  Phillipss
attorney conceded that the evidence was relevant to those issues,
but  clarified  that he was arguing that the  evidence  was  more
prejudicial  than probative.  Judge Smith denied  the  motion  in
limine,  but  told  Phillips that he could object  to  individual
exhibits as they were offered into evidence.
          Accordingly,  Phillips objected  when  the  prosecution
offered  testimony that the police found a credit card  belonging
to Gwendolyn Brown in the car when he was arrested.  In response,
the  prosecutor  argued  that  the  card  was  relevant  to  show
Phillipss  guilty knowledge, because Phillips had  insisted  that
Browns credit card and an assortment of  checks were left in  his
car  when he bought it.  The judge ruled that the credit card was
relevant  evidence  of  Phillipss overall  plan.   Phillips  also
objected  to  several exhibits including checks,  checkbooks,  or
other forms of paperwork belonging to individuals in addition  to
the victims in this case.10
          Alaska    Evidence    Rule   404(b)    restricts    the
admissibility of evidence of other crimes.11  But evidence of  an
ongoing   fraudulent  scheme  may  be  admissible  to  show   the
defendants motive, intent, knowledge or plan as those  terms  are
used in Evidence Rule 404(b).12  In the present case the evidence
that  Phillips  had  credit cards, checks,  and  other  documents
referring  to  other individuals tended to show (1)  his  overall
plan  to  steal  mail  and use it to create false  identification
documents,  (2)  his  motive  for  possession  of  the  documents
referring  to  Day,  Sturm, and Roberts, (3) his  knowledge  that
those  documents  were  stolen, and (4) his  intent  to  use  the
documents   he  had  stolen  and  created  to  make  unauthorized
          Phillips  argues  that this evidence should  have  been
          excluded under Alaska Evidence Rule 403, because it was more
prejudicial   than  probative.13   However,  Judge  Smith   could
legitimately  conclude that the probative value of this  evidence
to   explain  Phillipss  identity-theft  scheme  outweighed   the
possibility that the jury would improperly conclude that Phillips
had a propensity to commit this type of crime.14
          Furthermore,  the record contains a substantial  amount
of  additional  evidence  that is not contested  in  this  appeal
evidence  suggesting that Phillips was involved in  a  scheme  to
profit  from  the  theft of the identities  of  dozens  of  other
people.  Consequently, there is not a substantial likelihood that
the  jurys verdict was appreciably affected by the evidence  that
Phillips now disputes.15
     Probation Conditions
          A  condition of probation must be reasonably related to
the  rehabilitation  of the offender and the  protection  of  the
public,  and  must not be unduly restrictive of  [the  offenders]
liberty.16   Phillips  appeals two probation conditions,  Special
Condition  4,  which requires him to submit to drug  and  alcohol
testing, and General Condition 13, which requires him to abide by
special instructions from his probation officer.
             We   have  allowed  conditions  of  probation   that
authorize  warrantless searches for drugs and alcohol when  there
is  a  case-specific basis for the condition.17  For  example,  a
sentencing judge may impose such a condition when substance abuse
in the defendants background suggests that searches for drugs and
alcohol may further the defendants rehabilitation.18
          In  this case, the record includes substantial evidence
of  Phillipss struggles with substance abuse.  Phillipss  drivers
license  was  revoked twice in 2000 for being a minor  possessing
alcohol,  Phillipss  license  was  revoked  again  in  2004   for
providing  a  breath test result in excess of 0.08  percent,  and
Phillips  was also convicted of refusal to submit to  a  chemical
test  in  2005.   In  addition, Phillips admitted  that  he  used
nitrous  oxide  to  get high, and nitrous oxide  cartridges  were
found in Phillipss vehicle after he was arrested in this case.
          Furthermore,  a  man named Marvell Wells  told  Officer
Kelly  Turney that during the period of these offenses, Phillips,
Wells,  and two other people stayed at a hotel for about a  week,
where they partied and consumed a lot of drugs.  This evidence of
substance  abuse  was sufficient to establish that  searches  for
drugs  and  alcohol  would  be reasonably  related  to  Phillipss
successful rehabilitation.
          Phillips  also  appeals  General  Condition  13,  which
provides that he shall [a]bide by any special instructions  given
by  the  court or any of its duly authorized officers,  including
probation  officers  of the Department of Corrections.   Phillips
argues  that  this  condition is overbroad.   But  this  argument
ignores   the  implicit  limitations  on  a  probation   officers
authority in other provisions of law.  Indeed, we have noted that
defendants  have the right to seek court review  of  any  special
instruction  from  a probation officer.19  We therefore  conclude
that  this  condition  is  appropriate  for  effective  probation

     Parole Eligibility
          Phillips  also  appeals the superior courts  denial  of
his  motion  to  correct a clerical error in the  judgment.   The
judgment  states  that:  The sentence is . . . all  or  partially
presumptive.  The defendant is ineligible for parole,  except  as
provided  in AS 33.16.090(b) and (c).  This language is based  on
presumptive sentencing statutes that had been modified  prior  to
Phillipss offense, and it suggests that Phillips is not  eligible
for  discretionary  parole.   However,  under  current  law,   as
explained  in  Judge  Smiths  post-judgment  order,  Phillips  is
eligible  for discretionary parole.  On remand, the court  should
correct  the judgment to read that the defendant is eligible  for
parole as provided by statute.

          We  REVERSE  the convictions entered on Counts  10  and
14,  and  REMAND  for  entry of judgments of acquittal  on  those
counts.   We AFFIRM the convictions entered on all the  remaining
counts.   But we REMAND for resentencing on the remaining  counts
and  for  correction  of the judgment concerning  the  defendants
parole eligibility.
     1  Counts  1,  5,  8,  12,  and 15  were  charged  under  AS

     2   Counts    2,   13,  and  16   were  charged   under   AS
11.46.130(a)(1).   Counts  6  and  9   were  charged   under   AS
11.46.140(a)(1).   Count  11,  also charging  third-degree  theft
under AS 11.46.140(a)(1), was dismissed.

     3 Count 3 was charged under AS 11.46.285(a)(1)(3).

     4 Counts 4, 7, 10, and 14 were charged under AS 11.46.565.

5 AS 11.46.565.

     6 AS 11.46.990(10).

     7 See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).

     8  See  Sheldon  v.  State, 796 P.2d 831, 839  (Alaska  App.

     9  See,  e.g., Ratliff v. State, 798 P.2d 1288, 1291 (Alaska
App. 1990).

10       The   exhibits  were  (by  exhibit  number):    (55)   a
photograph  of a check with the name of Shirley Winther,  (56)  a
closeup of the Winther check, (61) a scrap of paper with the name
Andrea,  a  name  shared  by Phillipss  girlfriend,  (64)  stolen
checkbooks  belonging to Conrad Blatler and a check belonging  to
another  individual with a Fairbanks address,  (65-66)  duplicate
copies of Exhibit 64, (67) checkbooks and paperwork belonging  to
Conrad  Blatler,  John and Heather Coghill, Sean  Roos,  Jennifer
Uhaus,  and Evan King, (68-71) closeups of the checkbooks in  67,
and  (76)  a United States Treasury check in the name  of  Amanda

     11   Alaska Evidence Rule 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.
     12    See,  e.g., Fields v. State, 629 P.2d 46,  50  (Alaska
1981) (Evidence of other offenses or misconduct is often relevant
to show that the charged offense was part of an overall scheme or
plan  to defraud.); Miller v. State, 866 P.2d 130, 133-34 (Alaska
App.   1994)   (concluding   that  the  defendants   drug-dealing
enterprise  was  relevant to show his motive for a  home-invasion
robbery, since the robbery could have provided funds for the drug
operation);   DAntorio v. State, 837 P.2d 727, 735  (Alaska  App.
1992)  (allowing  credit  cards and records  belonging  to  other
victims  because  they  were  relevant  to  show  the  defendants
fraudulent  credit card scheme); Montes v. State, 669  P.2d  961,
965  n.1  (Alaska  App. 1983) (deciding that  evidence  that  the
defendant  had fraudulently stolen and sold a number of airplanes
and parts while misleading his business partner was admissible as
proof of a common scheme).

     13    Alaska Evidence Rule 403 provides that relevant . .  .
evidence may be excluded if its probative value is outweighed  by
the danger of unfair prejudice.

     14   Cf. Miller, 866 P.2d at 134 (Under the circumstances of
this  case, . . . proof of motive and common scheme or plan  were
crucial and legitimate components of the prosecutions case . .  .
.   Because the disputed evidence had direct and obvious  bearing
on  an actively disputed issue and was actually necessary to  the
states  case, we conclude that the trial court did not abuse  its
discretion   in   finding  the  evidence  more   probative   than
prejudicial under A.R.E. 403 and in allowing its admission.)

     15    See  Wyatt  v. State, 981 P.2d 109, 115 (Alaska  1999)
(noting  that  an evidentiary error is harmless  if  it  did  not
appreciably affect the jurys verdict) (quoting Love v. State, 457
P.2d 622, 631-32 (Alaska 1969)).

     16    Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977).

     17    See,  e.g.,  Lambert v. State, 172  P.3d  838,  841-42
(Alaska App. 2007).

     18   Id. at 840-41.

     19    Dayton  v.  State, 120 P.3d 1073,  1084  (Alaska  App.

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