Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.

Shorty v. State (8/7/2009) ap-2228

Shorty v. State (8/7/2009) ap-2228

     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-9942
Appellant, ) Trial Court No. 3AN-03-7796 CR
v. )
) O P I N I O N
Appellee. )
) No. 2228 August 7, 2009
Appeal    from    the
          Superior  Court,  Third  Judicial  District,
          Anchorage, Michael L. Wolverton, Judge.

          Appearances:  Doug Miller, Assistant  Public
          Advocate, and Joshua Fink and Rachel Levitt,
          Public   Advocates,   Anchorage,   for   the
          Appellant.   Tamara E. de Lucia and  Kenneth
          M.  Rosenstein, Assistant Attorneys General,
          Office  of Special Prosecutions and Appeals,
          Anchorage,  and  Talis J. Colberg,  Attorney
          General, Juneau, for the Appellee.

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

          BOLGER, Judge.

          Patrick  L.  Shorty appeals his convictions for  sexual
assault  in  the  first  degree  and  three  related  misdemeanor
charges.   He  argues  that he could not be  arrested  without  a
warrant,  and argues in the alternative that his arrest  was  not
supported  by  probable cause.  We hold that the police  did  not
need an arrest warrant before arresting Shorty for a felony,  and
we conclude that there was probable cause for Shortys arrest.
          We  also conclude that the trial judge properly  joined
the  sexual  assault  charge with the  misdemeanor  charges  that
developed when Shorty was arrested, and that there was sufficient
evidence to support Shortys convictions for resisting arrest  and
fourth-degree  assault.   But we reverse Shortys  conviction  for
providing  false  information  to  a  peace  officer  because  we
conclude  that the trial judge improperly allowed the prosecution
to  substantively  amend that charge at  the  conclusion  of  the

          On  July  8, 2003, a young woman named B.A. encountered
three  men  at  the  Anchorage Transit  Center.   After  a  brief
conversation, the four began walking together towards  the  Carrs
store  at 13th Avenue and Gambell Street.  As they walked through
a  vacant  field,  one  of  the men tripped  B.A.  and  took  her
backpack.   A younger man then held B.A. down while an older  man
raped  her  and repeatedly punched her in the face.  The  younger
man  raped B.A. after the older man had finished.  The third  man
then  alerted  his companions that police were  nearby,  and  the
three men quickly fled on foot.  Shortly afterwards, B.A. ran  to
a  nearby patrol car and flagged down Officer Leonard Torres  for
          Officer  Torres saw three men running from  the  scene.
Chasing  them down, Torres apprehended Thomas Leichty, whom  B.A.
identified  as one of the three men who assaulted  her.   Leichty
later told another officer that he could not remember his role in
the  assault  because he was intoxicated.  However,  Leichty  did
recall  that  his friend  a man he knew as Shorty   had  sexually
assaulted B.A.  Leichty also mentioned that he had been in prison
with  Shorty; using this information, officers were able  to  get
the  name  of  Patrick  Leo Shorty from the  Tundra  Correctional
          After  receiving  Shortys name,  Detective  Kenneth  D.
McCoy  showed  B.A. a photo lineup of suspects.  B.A.  chose  two
photos  from the lineup, one of which was of  Shorty.  Proceeding
on  Leichtys statement, B.A.s description of the crime,  and  her
tentative  identification  of  Shorty,  McCoy  applied  for   and
obtained  a search warrant for Shortys DNA, clothing,  and  other
biological material on July 16, 2003.  This warrant was good  for
ten days.  McCoy also had the police dispatchers issue a stop-and-
hold  locatedirective, asking any law enforcement  officials  who
contacted  Shorty to detain him so that McCoy could  execute  the
search warrant.
          On  July  26,  2003,  the tenth day  after  the  search
warrant  was issued, the police dispatcher received an  anonymous
tip  that Shorty was near 10th Avenue and Ingra Street wearing  a
green  trench  coat.   Officers Gregory  Witte  and  Andy  Cottle
separately responded to the resulting dispatch.  Witte  responded
first  and  found  a man matching the description  given  by  the
dispatcher.  Witte approached the suspect and asked  the  man  to
identify  himself,  and he responded that  his  name  was  Harold
Gregory.   He initially said that he was born in July 1969,  then
said  that he was actually born in 1968, and later suggested that
his  birthday was actually in August.  He also did not  know  his
social security number.
          Witte  attempted to confirm this information  with  the
Alaska  Public Safety Information Network database, but the  name
Harold  Gregory  registered no matches.  At the same  time,  both
Witte and Cottle also believed that the suspect was  preparing to
flee.    When  Witte  then  confronted  the  suspect  about   his
inconsistent birthdays, he stopped talking.  At that point, Witte
decided to arrest the man  who was in fact Patrick Shorty.
          The  officers began to grab Shortys arms, but he pulled
the  officers into a nearby alley.  The officers took  Shorty  to
the  ground, and Cottle attempted to control Shortys  head  while
Witte  tried  to control Shortys arms.  During the melee,  Cottle
applied  a  vascular restraint that momentarily  rendered  Shorty
unconscious;  when he regained consciousness, he quickly  resumed
fighting.  When Officer Christopher Ritala arrived, however,  the
three police officers were able to secure Shorty.
          At  the police station, Shorty detailed his account  of
the  assault to Detective McCoy.  According to Shorty,  he  could
not  remember his exact role because he was intoxicated, but  did
remember that Leichty had sex with B.A.
          McCoy  then  obtained a new search warrant  authorizing
collection  of Shortys DNA because he believed that the  previous
warrant  had expired.  After  obtaining samples from both  Shorty
and  Leichty,  the police compared them to an original  DNA  swab
taken  from  B.A.   The  results showed that  Shorty  was  almost
certainly  the source of the sperm sample contained in  the  swab
from  B.A.  The results also indicated that Shorty was the likely
source  of  a sperm sample contained in a penile swab taken  from
          Shorty  was  then  charged with two  counts  of  first-
degree sexual assault,1 one count of resisting arrest,2 one count
of  fourth-degree  assault,3 and one  count  of  providing  false
information  to  a peace officer.4  Prior to trial,  he  filed  a
motion  to suppress all of the evidence stemming from his  arrest
arguing  that he was detained and arrested without a warrant  and
without probable cause.  After two evidentiary hearings, Superior
Court  Judge  Michael L. Wolverton  ruled that the  officers  had
probable  cause to arrest Shorty and that no arrest  warrant  was
          Judge  Wolverton also denied Shortys motions  to  sever
the  charges for separate trials, to dismiss the indictment,  and
alternative  motions asking the court to dismiss the  misdemeanor
charges  or require a bill of particulars.  But the judge granted
Shortys  motion  to suppress the statement he made  to  Detective
McCoy  following  his  arrest  because  he  concluded  that   the
statement   had  been  coerced  by  McCoys  threat   of   harsher
          Shorty  was  convicted  on all  charges  after  a  jury
          trial, and sentenced to a composite term of imprisonment of 31
years and 30 days.  Shorty now appeals to this court.

     No Warrant is Required for a Felony Arrest
          Shorty  argues  that  we  should  construe  the  Alaska
Constitution  to  require the police to obtain a  warrant  before
making  a  felony  arrest unless there are exigent  circumstances
that  require  immediate action.6  Shortys argument  is  directly
contrary to AS 12.25.030(3), which authorizes a peace officer  to
arrest a person without a warrant when a felony has in fact  been
committed, and the person making the arrest has reasonable  cause
for  believing the person to have committed it.  As we  explained
in McCoy v. State, under this statute, a peace officer, without a
warrant,  may arrest a person for a felony when the  officer  has
probable  cause to believe that a felony has been  committed  and
probable cause to believe that the person committed it.7
          Alaska   Statute  12.25.030(3)  codifies  the   ancient
common-law  rule  that a peace officer was  permitted  to  arrest
without  a  warrant  for  a . . . felony  not  committed  in  his
presence  if there was reasonable ground for making the  arrest,8
and is consistent with similar federal statutes enacted since the
Second  Congress  in 1792.9  In construing the Fourth  Amendment,
the  United  States Supreme Court has approved of peace  officers
having  authority  to make warrantless felony  arrests  based  on
probable  cause   even  if they have an adequate  opportunity  to
obtain a warrant.10
             Statutory   enactments  carry   a   presumption   of
constitutionality:  A party raising a constitutional challenge to
a  statute  bears the burden of demonstrating the  constitutional
violation.11  And when a party claims that our state constitution
should  be  interpreted differently than its federal counterpart,
the  party  must  point  this court to  something  in  the  text,
context,  or  history of the Alaska Constitution which  justifies
this divergent interpretation.12
          Shorty  has  not  pointed  to  anything  in  the  text,
context, or history of the Alaska Constitution suggesting why  it
should  be  interpreted differently than the Federal Constitution
on  this  issue.   Indeed, there is substantial evidence  to  the
contrary:   Alaska  law has been consistent with  the  common-law
felony-arrest  rule  since long before statehood.13   Shorty  has
presented  nothing  to suggest that the Alaska  Constitution  was
intended to abrogate this long standing rule.
          We   therefore   conclude  that  AS   12.25.030(3)   is
constitutional:  Felony arrests based on probable  cause  can  be
made without a warrant.  Accordingly, we now analyze whether  the
police had probable cause to arrest Shorty.

     The  Police  Had Probable Cause to Arrest Shorty for  Sexual
          A  police  officer  has  probable  cause  to  arrest  a
suspect  when  the facts and circumstances known to  the  officer
would  support a reasonable belief that the suspect has committed
a  criminal  offense.14   Probable cause  requires  only  a  fair
probability  or substantial chance of criminal activity,  not  an
actual  showing  that such activity occurred.15   We  review  the
          record independently when we decide whether a particular arrest
is supported by probable cause.
          Detective  McCoy  obtained  statements  from  B.A.  and
Thomas Leichty.  B.A. stated that she had been raped by two  men,
and  Leichty confirmed that B.A. had been raped by his  companion
named  Shorty,  whom  he  had met in  jail.   Leichtys  statement
identifying  Shorty  was corroborated by  the  details  of  B.A.s
statement, her tentative identification of Shortys photo, and the
correctional  facility  report  that  Leichty  and  Shorty   were
incarcerated together in the past.16  This evidence established a
fair  probability that Shorty had committed the crime  of  sexual
assault.  McCoy had thus developed probable cause by the time  he
issued the directive requesting other officers to locate and hold
Patrick Shorty.
          In  addition, McCoys determination was supported  by  a
neutral  judicial  determination.  McCoy  applied  for  a  search
warrant  to  take  physical  samples from  Shorty  based  on  the
statements  of  B.A.  and  Leichty   the  same  statements   that
supported his locate and hold directive.  The judge who  reviewed
McCoys  application found probable cause to believe that the  DNA
samples taken from Shorty would contain evidence of the crime  of
sexual  assault in the first degree.  And this was essentially  a
judicial  finding that there was probable cause to  believe  that
Shorty had participated in the sexual assault of B.A.
          For   these   reasons,  we  affirm   Judge   Wolvertons
conclusion  that the police had probable cause to  arrest  Shorty
when they detained him on July 26th.

     Officers  Witte and Cottle Had a Reasonable Belief That  the
     Person They Detained Was Patrick Shorty
          The  two  officers who stopped Patrick Shorty  on  July
26,  Witte  and Cottle, knew from previous briefings that  Shorty
was  a  Native man who was a suspect in a recent sexual  assault.
They were dispatched to 10th Avenue and Ingra street based on  an
anonymous tip that Shorty was near that intersection and  wearing
a  green  coat  and   backpack.  And when the  officers  arrived,
Shorty was the only person matching this description.
     Simply  put,  Witte and Cottle were justified  in  arresting
the man in the green coat if they had reason to believe that this
man was Patrick Shorty.17  The officers were entitled to rely  on
the  totality  of  the information they had at the  time  of  the
arrest,  even though the individual clues (such as the  anonymous
tip18  and  the absence of an APSIN record for Harold  Gregory19)
would  be  insufficient to establish probable cause  if  analyzed
          In  a  similar  case from the Tenth  Circuit  Court  of
Appeals, a Kansas police officer had an arrest warrant for a  man
named Gavin Allen.21   The officer received an anonymous tip that
Allen would be at a certain residence, and found someone at  that
residence  who  matched  the physical description  given  by  the
informant.  The suspect said that his name was Gerald Allen,  but
then  told the officer that his identification was in his brother
Geralds  car.22    The court concluded that, at this  point,  the
officer  could reasonably infer that the defendant  was  actually
Gavin Allen and was simply using the name Gerald as a cover.23
          In  this  case, Witte and Cottle likewise had  probable
cause  to believe that the man they were dealing with was Patrick
Shorty.   They  were  dispatched  to  the  location  because   an
anonymous  caller  had reported seeing Shorty there.   When  they
arrived,  they  found  a man matching the descriptions  given  by
McCoy  and  the caller.  When Witte questioned the man about  his
identity,  the  man gave answers that reasonably appeared  to  be
false and evasive.  As we have already explained, Shorty gave the
officers two different years for his birth date (1968 and  1969),
as well as two different months, first saying that he was born in
July  and  then saying that his birthday was next month (August).
Also,  Shorty  could  not give the officers his  social  security
          Moreover,  Shorty claimed not to have any documentation
of  his  identity, and both officers began to sense that  he  was
preparing to flee, especially after he tried to hand his coat  to
Officer  Cottle.   Given  all of these circumstances,  Witte  and
Cottle  could reasonably conclude that the man they were speaking
to  was Patrick Shorty.24  They thus had probable cause to arrest
him for sexual assault.
          These  same  circumstances gave the  officers  probable
cause  to arrest Shorty for giving false information to a  police
officer.   The officers could reasonable conclude that Shorty had
knowingly give[n] false information to a peace officer concerning
[his] identity while . . .  under . . . investigation for a crime
.  . . .25   Accordingly, the officers had two justifications for
arresting Shorty.26
          Given  our  conclusion  that the  police  had  probable
cause  to  arrest  Shorty for sexual assault and  for  furnishing
false  identifying information, we need not reach  another  issue
presented  in  this  case:  Whether the original  search  warrant
authorizing the seizure of biological materials from  Shorty  had
expired by the time he was arrested on the afternoon of July 26.
          This warrant was issued on the morning of July 16,  and
the  warrant declared that the seizure was to be conducted within
ten  days.   Shorty takes the position that the  warrant  expired
exactly 240 hours after it was issued, and thus it had expired by
the  time  the police located him.  This position appears  to  be
contrary to case law from other jurisdictions suggesting that the
warrant was effective at least until the conclusion of the  tenth
calendar   day.27    However,  because  there  were   independent
justifications  for  Shortys arrest,  we  need  not  decide  this
particular issue in this case.

     Shortys  Claim  that  His  Arrest was  Illegal  Because  the
     Officers Failed to Announce the Cause for His Arrest
          Shorty  argues  we  should find  that  his  arrest  was
illegal because the officers failed to inform him of the cause of
the arrest as required by AS 12.25.060.  But Shorty did not raise
this  issue  in  the  superior court, and  the  parties  did  not
litigate  exactly what he was told at the time of his  detention.
Even  if the officers conduct failed to comply with AS 12.25.060,
it  is not obvious that a violation of this clause of the statute
should require the suppression of probative evidence.28  We  note
that,  in  cases  interpreting the analogous knock  and  announce
rule,  we  have  held that police officers failure  to  inform  a
resident  of  the  reason for their entry  is  harmless  if  that
resident  was  already aware of the reason.29  We  conclude  that
Shorty failed to preserve this issue for appeal, and at the  very
least, he has not shown plain error.30

     The  Grand  Jury  Heard  Sufficient Admissible  Evidence  to
     Support the Indictment
          Shorty   filed  a  pretrial  motion  to   dismiss   the
indictment  against  him   arguing that the prosecutor  presented
three types of inadmissible evidence to the grand jury:  the  DNA
evidence   obtained from Shorty (because the arrest was illegal),
Leichtys  statement to the police (because it was  hearsay),  and
Shortys statement to the police (because it was involuntary).
          Having  concluded  that Shortys arrest  was  legal,  we
also  conclude that the DNA evidence that was obtained  from  him
after his arrest was properly presented to the grand jury.  There
is  also an argument under Alaska case law that the State  had  a
compelling justification to present Leichtys hearsay statement to
the  grand  jury.31   But Judge Wolverton did not  consider  this
issue because he concluded that removing Leichtys statement  from
the  grand jury would not vitiate the indictment.  However, Judge
Wolverton did suppress Shortys statement to the police,  so  that
statement was also inadmissible at the grand jury proceeding.
          We   will   assume  that  both  Shortys  and   Leichtys
statements were inadmissible when we analyze their effect on  the
grand  jurys indictment.  As we explained in Stern v.  State,  we
must  determine (1) whether the remaining evidence is  sufficient
to  support the indictment and, if so, (2) whether the  probative
force  of  [the] admissible evidence was so weak and  the  unfair
prejudice engendered by the improper evidence was so strong  that
it  appears  likely that the improper evidence was  the  decisive
factor in the grand jurys decision to indict.32
          The  admissible evidence before the grand jury included
B.A.s  testimony that she had been raped by a man  named  Shorty,
and  the  evidence suggesting that Shortys DNA matched  a  sample
taken from B.A.s vagina.  There is no serious question that  this
evidence was legally sufficient to support the indictment.  Thus,
only the second question remains:  Whether the probative force of
this   evidence  was  so  weak  that  it  was  likely  that   the
inadmissible evidence was the decisive factor in the grand  jurys
decision to indict.
          The   inadmissible  statements  were  indeed  probative
each   acknowledged Shortys presence at the scene of  the  sexual
assault.   But  the DNA evidence proved this point independently,
and  was  substantially stronger.  The DNA evidence  showed  that
Shortys  seminal  fluids were almost certainly present  in  B.A.s
vagina,  on  her  jeans, and on Leichtys penis and  shirt.   This
evidence  strongly  corroborated B.A.s  testimony  that  she  was
initially  raped  by Shorty, and then by Leichty.   We  therefore
conclude  that  Shortys  and Leichtys  statements  were  not  the
decisive factor in the grand jurys decision to indict.

     Shortys Various Offenses Were Properly Joined for Trial
          Prior  to trial, Shorty asked the trial court to  sever
the  sexual  assault  charges from the misdemeanor  charges  that
stemmed from his arrest (resisting arrest, assault in the  fourth
degree, and providing false information to a peace officer).   In
reviewing  the trial courts denial of Shortys request,  we  first
inquire  whether  the offenses are related in  one  of  the  ways
authorizing joinder under Alaska Criminal Rule 8(a).33
            Rule 8(a)(3) authorizes joinder of offenses that  are
based  on two or more acts or transactions connected together  or
constituting  parts  of  a  common  scheme  or  plan.    Criminal
transactions  may be connected together under Rule  8(a)(3)  when
the  State charges that the defendant committed an earlier crime,
then  committed  later crimes to avoid detection or  prosecution.
For  example, in Phillips v. State, the defendant committed armed
robbery  in Anchorage, stole a cab in Palmer, and then  killed  a
state  trooper  who stopped him as he fled in  the  direction  of
Glennallen.34  In West v. State, the defendant barricaded himself
in  a cabin and set it on fire to avoid arrest for his failure to
report  to  a  correctional facility.35  In Sharp v.  State,  the
defendant  fled  to South Carolina to avoid his trial  on  sexual
abuse  charges.36  Similarly, in Newcomb v. State, the  defendant
escaped  from  a  correctional facility,  then  shot  two  police
officers  as  they  were  attempting to  arrest  him  five  month
later.37   In  each of these cases we held that the  crimes  were
sufficiently connected to justify joinder under this subsection.
          The  rationale for joinder in Shortys case is  similar.
The  evidence that Shorty committed a sexual assault was relevant
to  show  that  he  had  a motive for giving  false  information,
resisting  arrest,  and assaulting an officer when  the  officers
approached him eighteen days later.  And the evidence that Shorty
gave  a  false  name  and  attempted  to  avoid  his  arrest  was
correspondingly relevant to show that he had guilty knowledge  of
the  sexual assault.  In other words, these two sets of  offenses
were  sufficiently  connected together to justify  joinder  under
Criminal Rule 8(a)(3).
          We  next  must  determine whether the trial  court  was
required  to  sever  the charges under Alaska Criminal  Rule  14,
which  allows for relief from prejudicial joinder.  But [i]f  the
evidence  would  be  cross-admissible if  tried  separately,  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.38  As noted above,
the  evidence  of  the sexual assault would be relevant  to  show
Shortys  motive  for avoiding arrest, and the  evidence  that  he
tried  to avoid his arrest would be relevant to show that he  had
committed  the sexual assault.  Moreover, Shorty did  not  suffer
any  prejudice based on the joinder of these offenses, and  Judge
Wolverton  thus  did  not  abuse his discretion  when  he  denied
Shortys motion to sever.

     Sufficient   Evidence  Supported  Shortys   Conviction   for
Resisting Arrest
          At  the  close of evidence, Shorty moved for a judgment
of  acquittal on the resisting arrest charge, but this motion was
denied.   Shorty now argues that there was insufficient  evidence
that he knew he was under arrest and that he used force to resist
arrest.    To  address  this  argument,  we  view  the   evidence
presented,  and the reasonable inferences from that evidence,  in
the  light  most  favorable to upholding the jurys  verdict.   We
consider   whether  a  fair-minded  juror  exercising  reasonable
judgment could conclude that the State met its burden of  proving
guilt beyond a reasonable doubt.39
          Alaska  Statute  11.56.700(a)(1)  provides:   A  person
commits  the  crime of resisting or interfering with  arrest  if,
knowing  that a peace officer is making an arrest [and] with  the
intent  of  preventing the officer from making  the  arrest,  the
person  resists . . .  arrest . . . by force . . . .  Under  this
statute, it is not always necessary for the State to prove that a
person  was  explicitly told that he was under  arrest,  but  the
State  must  prove that the defendant was aware that the  officer
was making an arrest.40
          In  the  instant  case, there was substantial  evidence
suggesting  that Shorty knew  he was being placed  under  arrest.
Shorty gave  Officer Witte a false name and false birthdays  when
the  officer  first  approached.  Then Shorty  appeared  to  make
preparations  to flee or fight as he tried to hand  his  coat  to
Officer Cottle.  This behavior suggested that Shorty knew that he
was under investigation for a crime even before the officers laid
their hands on him.
          Indeed,  Shorty  began  to resist  the  officers  quite
violently   when  they  tried  to  handcuff  his   second   hand.
Accordingly,  viewing the record in the light most  favorable  to
the  State,  the jury could have reasonably inferred that  Shorty
knew that the officers were making an arrest.
          There is also substantial evidence that Shorty resisted
his  arrest  by force.  Force is defined by statute to  mean  any
bodily  impact,  restraint,  or  confinement  or  the  threat  of
imminent bodily impact, restraint, or confinement.41   At  trial,
Officer  Witte  testified that when he and  Cottle  attempted  to
arrest  Shorty,  Shorty pulled [them] a good ten to  twelve  feet
into the alley and began to struggle.  The officers then took him
to  the ground where he landed on all fours.  While Witte had one
of  Shortys  hands, Shorty used his other hand  to  grab  Cottles
hands  and  fingers.   Cottle then applied a vascular  restraint,
rendering  Shorty momentarily unconscious.  When Shorty  regained
consciousness, he immediately started fighting and  grabbing  for
the  officers hands, trying to do damage . . . so that . .  .  he
could get away.  When Officer Ritala arrived, the three were able
to restrain Shorty and secure him in handcuffs and hobbles.
          Based  on  these accounts, we conclude that  there  was
ample  evidence  to  support  Shortys  conviction  for  resisting

     Sufficient  Evidence Also Supported Shortys  Conviction  for
          At  the  close  of evidence, Shorty also  moved  for  a
judgment  of  acquittal on the charge of assault  in  the  fourth
          degree.  This charge was based on the allegation that Officer
Cottle  suffered  injury  to  his knee  during  the  struggle  in
arresting  Shorty.   Shorty argued that  there  was  insufficient
evidence that he caused the injury to Cottles knee.
          Alaska  Statute  11.41.230(a)(1)  provides:   A  person
commits the crime of assault in the fourth degree if that  person
recklessly causes physical injury to another person . .  .  .   A
person  acts  recklessly   when  the  person  is  aware  of   and
consciously disregards a substantial and unjustifiable risk  that
the result will occur . . . .42
          At  trial, Officer Cottle testified that he injured his
knee  while  trying  to  arrest  Shorty.   According  to  Cottles
testimony,  he applied several knee strikes to Shortys midsection
and  was wrestling Shorty on the ground, and as a result received
injuries that required medical attention.  Cottle testified  that
he would not have used the knee strikes if Shorty had not been so
          Officer   Witte  characterized  Shortys   behavior   as
aggressive resistance and testified that Shorty was attempting to
do  damage  so  that he could get away from the police.   Officer
Cottle  also  characterized  Shortys resistance  as  violent  and
testified that Shorty just fought.  Officer Ritala testified that
when  he  arrived, Shorty was on the ground kicking and  actively
fighting the other officers.
            Based  on  this  testimony, the jury  had  reasonable
grounds  to  infer  that Cottle sustained his knee  injury  while
Shorty  physically  resisted  arrest   either  through  the  knee
strikes or by contact with the ground  and  that Shorty was aware
of  and consciously disregard[ed] a substantial and unjustifiable
risk  that his struggle would lead to Cottle or one of the  other
officers suffering this kind of injury.

     Shorty  Suffered  Prejudice From the Late Amendment  of  the
     False Information Charge
          Throughout  the trial, the State prosecuted  the  false
information    charge   under   AS   11.56.800(a)(1)(A),    which
criminalizes  providing  false information  with  the  intent  of
implicating  another  in an offense . . . .   The  States  theory
apparently was that, when Shorty provided the name Harold Gregory
to  the  police,  he  was attempting to implicate  someone  named
Harold Gregory in the commission of an offense.
          At  the  close of evidence, Shorty moved for a judgment
of  acquittal on the ground  that no one else had been implicated
in  a crime when he gave the officers the false information.   In
response,  the State then moved to amend the charging statute  to
AS 11.56.800(a)(1)(B)(i), which criminalizes the act of providing
false information while under arrest, detention, or investigation
for  a  crime.   Shorty objected to this proposed amendment,  but
Judge  Wolverton allowed it, finding that there was no  prejudice
because  the evidence presented at Shortys trial would have  been
the same under either theory.
          Under  Alaska Criminal Rule 7(e), a court may permit  a
charge to be amended before the verdict has been returned if  the
prosecution  satisfies  two  elements:   (1)  no  additional   or
          different offense is charged and (2) the substantial rights of
the  defendant [have not been] prejudiced.  To succeed on appeal,
Shorty  must  show  that the nature or timing  of  the  amendment
prejudiced his defense.43
            Here,  the  amendment was granted after  all  of  the
trial  evidence  had  been presented.  In  the  absence  of  this
amendment,  Shorty  would have been entitled  to  a  judgment  of
acquittal, as the State presented no evidence that Harold Gregory
existed or that Shorty was attempting to implicate this person in
the commission of a crime.
          More   importantly,  however,  the  amendment  actually
prejudiced  Shortys defense.  Shorty defended against  the  false
information charge by contending that Harold Gregory was  just  a
made-up name, and that he did not intend to implicate anyone else
in  a  crime.   Shortys  attorney  cross-examined  Officer  Witte
concerning  this issue, and Witte admitted that he did  not  know
whether  Harold  Gregory actually existed.   In addition,  before
the  State moved to amend the charge, Shorty had no incentive  to
cross-examine the officers about the element that  was  added  by
the  amendment:  Whether he should have known that he  was  under
investigation for a crime when the officers approached him and he
gave them a false name.
          We  acknowledge  that  the issue of  Shortys  knowledge
that  he  was  being investigated for a crime overlaps  with  the
issue  we  resolved concerning the resisting arrest charge   that
is,  whether  Shorty was aware that the officers were  trying  to
arrest  him.  But  the amended false information charge  required
the  State  to prove a somewhat more difficult proposition   that
Shorty  knew  that he was under criminal investigation  when  the
officers  first approached him and he gave them the  false  name.
We   believe   that  Shorty  might  have  litigated  this   issue
differently  if he had known that the State would  proceed  under
subsection  (1)(B)(i) of the statute, and we  therefore  conclude
that Shorty was prejudiced by the amendment of the charge.

          We   REVERSE   Shortys  conviction  for  giving   false
information.   We  AFFIRM  the balance  of  the  superior  courts

     1 Counts III and IV - AS 11.41.410(a)(1); AS 11.16.110.

     2 Count V - AS 11.56.700(a)(1).

     3 Count VI - AS 11.41.230(a)(1).

     4 Count VII - AS 11.56.800(a)(1).

     5  See  Beavers  v.  State, 998 P.2d 1040,  1046-48  (Alaska

6  Cf.  Campos  v.  State, 870 P.2d 117, 121 (N.M.  1994)  (Thus,
our  constitution  and  case law lead  us  to  hold  that  for  a
warrantless  arrest  to be reasonable the arresting  office  must
show  that  the  officer had probable cause to believe  that  the
person arrested had committed or was about to commit a felony and
some exigency existed that precluded the officer from securing  a

     7 491 P.2d 127, 130 (Alaska 1971).

     8 United States v. Watson, 423 U.S. 411, 418, 96 S. Ct. 820,
825, 46 L. Ed. 2d 598 (1976).

     9 See id. at 420-21, 96 S. Ct. at 826.

     10   See id. at 423-24, 96 S. Ct. at 828.

     11   Baxley v. State, 958 P.2d 422, 428 (Alaska 1998).

     12    Mitchell  v. State, 818 P.2d 1163, 1165  (Alaska  App.

     13    See  290, pt. II Carters Annotated Alaska Code (1900).
Moreover,  the  rule in Carters Code was based  on  the  Code  of
Criminal  Procedure, ch. XXXVI,  370 at 505 (1864),  codified  in
General  Laws  of Oregon, ch. XXXVI,  370 (Deady and  Lane  1843-
1872),  which  states  that  [a] peace  officer  may,  without  a
warrant,  arrest a person . . . [w]hen a felony has in fact  been
committed,  and he has reasonable cause for believing the  person
arrested to have committed it.

     14   State v. Joubert, 20 P.3d 1115, 1118-19 (Alaska 2001).

     15   Id. (citation omitted).

     16    See Merrill v. State, 457 P.2d 231, 234 (Alaska 1969),
overruled  on other grounds by Donnelly v. State, 516  P.2d  396,
399  n.6 (Alaska 1973) (finding that there was probable cause  to
arrest a suspect based on his identification by an accomplice).

     17   Cf. Hill v. California, 401 U.S. 797, 802-04, 91 S. Ct.
1106,  1110-11,  28  L.  Ed. 2d 484 (1971)  (holding  that  in  a
situation  where  the police have probable cause  to  arrest  one
party,  and  reasonably mistake a second  party  for  that  first
party, the arrest of the second party is still a valid arrest).

     18    See  Carter v. State, 910 P.2d 619, 626  (Alaska  App.
1996) (noting that unverified anonymous tips are insufficient  to
establish probable cause).

     19    See  Erickson v. State, 141 P.3d 356,  359-60  (Alaska
App. 2006) (concluding that the mere absence of someones name  in
the APSIN database does not establish probable cause).

     20    See  Dunn v. Alaska, 653 P.2d 1071, 1079 (Alaska  App.
1982) (Although it might be true . . .  that various factors,  if
taken  individually, are as readily consistent with innocence  as
guilt,  we  believe that the main point to be made  is  that  the
factors  did not occur individually, and in isolation  from  each

     21    See United States v. Allen, 235 F.3d 482, 487-88 (10th
Cir. 2000).

     22   Id. at 488.

     23   Id.

     24   See Dunn, 653 P.2d at 1079.

     25   AS 11.56.800(a)(1)(B)(i).

     26   See, e.g., Snider v. State, 958 P.2d 1114, 1118 (Alaska
App.  1998);  State v. Kendall, 794 P.2d 114,  117  (Alaska  App.
1990) ([T]he trial court should analyze the objective information
which  the  police had at the time when they made  an  arrest  in
determining  whether  there  was  probable  cause  to  make  that

     27   See, e.g., United States v. Robinson, 536 F.3d 874, 877-
78 (8th Cir. 2008); Batemon v. United States, 203 Fed. Appx. 723,
725-26 (7th Cir. 2006); People v. Clayton, 22 Cal. Rptr. 2d  371,
374  (Cal. App. 1993); State v. Edwards, 297 N.W.2d 12, 14  (Wis.

     Fl   ener v. State, 686 P.2d 730, 735-36 (Alaska App. 1984), w
here  this  Court  found substantial compliance  with  the  knock
  and announce statute in a case where the police identified them
selves, but did

     29   See Fleener v. State, 686 P.2d 730, 735-36 (Alaska App.
1984),  where  this Court found substantial compliance  with  the
knock  and announce statute in a case where the police identified
themselves,  but  did  not announce their  purpose  or  authority
before  entering the house to serve a search warrant.  Our ruling
rested  on  the trial judges findings that Fleener  was  in  fact
aware  of  the officers purpose and authority, even  without  any
announcement:   Fleener knew [that] the police were  [coming  to]
her  residence to seize marijuana and that they had now  obtained
lawful authority to enter.  Id. at 736.

     30    See  Mattox v. State, 191 P.3d 148, 151  (Alaska  App.
2008) (Because Mattox never argued in superior court that his due
process rights were violated, he did not preserve this claim  for

     31    See  Galauska v. State, 527 P.2d 459,  463-66  (Alaska
1974) (noting the fact that a codefendant would probably exercise
his  right  not  to  testify before the grand  jury  could  be  a
compelling   justification  for  the  admission  of  codefendants
confession that implicated the defendant).

     32   827 P.2d 442, 445-46 (Alaska App. 1992).

     33    See  Pease  v.  State, 54 P.3d 316, 322  (Alaska  App.

     34   70 P.3d 1128, 1132-34 (Alaska App. 2003).

     35   923 P.2d 110, 112-13 (Alaska App. 1996).

     36   837 P.2d 718, 722-25 (Alaska App. 1992).

     37    800  P.2d  935, 942-43 (Alaska App. 1990).   See  also
Maynard v. State, 652 P.2d 489, 491 (Alaska App. 1982) (Here  all
charges  grew  out of a related series of events, and  the  trial
court  could  well  have anticipated that much  of  the  evidence
offered  in  support  of  one count  would  be  relevant  to  the

     38   Pease, 54 P.3d at 322.

39    See  Eide  v.  State,  168 P.3d 499,  500-01  (Alaska  App.

     40    See  Jones  v. State, 11 P.3d 998, 1001  (Alaska  App.

     41   AS 11.81.900(b)(27).

42   AS 11.81.900(a)(3).

     43   See Bowers v. State, 2 P.3d 1215, 1221 (Alaska 2000).

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights