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Joseph v. State (12/13/2013) ap-2404

Joseph v. State (12/13/2013) ap-2404


         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 Courts:   

                                 303 K Street, Anchorage, Alaska  99501

                                            Fax:  (907) 264-0878

                           E-mail:  corrections @



                                                                  Court of Appeals No. A-10945  

                                   Appellant,                   Trial Court No. 3AN-09-8612 CR  


                                                                          O  P  I  N  I  O  N 


                                   Appellee.                     No. 2404  -  December 13, 2013  

                 Appeal   from   the   Superior   Court,   Third   Judicial   District,  

                 Anchorage, Jack W. Smith, Judge.  

                 Appearances:    Renee  McFarland,  Assistant  Public  Defender,  

                 and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the  

                 Appellant.  Kenneth M. Rosenstein, Assistant Attorney General,  

                 Office  of  Special  Prosecutions  and  Appeals,  Anchorage,  and  

                 Michael C. Geraghty, Attorney General, Juneau, for the Appel- 



                 Before:  Mannheimer, Chief Judge, Allard, Judge, and Coats,  



                 Senior Judge  .  

                 Judge MANNHEIMER.  

    *    Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  11  of  the  Alaska  

Constitution and Administrative Rule 23(a).  

----------------------- Page 2-----------------------

                    Serena Michelle Joseph received a traffic ticket for speeding.  At the trial  


of this traffic ticket, Joseph took the stand and testified that she had not been driving the  

vehicle  when  the  police  officer  observed  the  speeding  violation.    Joseph  was  later  

charged with, and convicted of, perjury for giving this testimony.   

                    At her perjury trial, Joseph asked the judge to let her introduce a video re- 


enactment made by her defense investigator - a video which, Joseph claimed, showed  


that it would have been impossible for the police officer to have identified the physical  


characteristics of the driver of the car. The trial judge refused to let Joseph introduce this  


video, and Joseph contends that this ruling was error.  We conclude that the trial judge  


did not abuse his discretion in making this ruling.  

                    In  addition,  Joseph  appeals  the  sentence  she  received  for  her  perjury  

conviction.  Joseph argues that the sentencing judge relied on an improper legal rationale  


when he rejected her proposed mitigating factor, AS 12.55.155(d)(9) (conduct among  

the least serious within the definition of the offense).  We agree with Joseph on this issue,  


and we therefore vacate the judge's ruling on mitigator (d)(9) and direct the judge to  


reconsider this matter.  

          Underlying facts regarding Joseph's request to introduce the video  

                    While on patrol in early February 2009, headed north on Boniface Parkway,  

Anchorage  Police  Officer  Christopher  Ritala  saw  a  Chevy  van  traveling  south  on  

Boniface Parkway at a high rate of speed.  The speed limit was 45 miles per hour, and  


Ritala estimated that the van was traveling at 65 miles per hour.  Ritala then used the  


radar in his patrol car to get a more accurate determination of the vehicle's speed; the  

radar reading was 67 miles per hour.  

                                                              -2-                                                        2404

----------------------- Page 3-----------------------

                    Ritala testified that he was able to identify the driver of the van as a lighter- 


skinned black female with "wiry" hair.  

                    Ritala executed a u-turn and followed the van.  The van made several turns,  

and Ritala briefly lost sight of it, but he soon found the van parked outside a house.  


Ritala testified that, when he arrived, Joseph was either still in the driver's seat or near  


the door of the vehicle.  

                    During their ensuing conversation, Joseph never expressly admitted that she  

had been speeding, but she told Ritala that she had been driving home from work, that  


she needed to use the bathroom, and that she did not feel comfortable using a public  


facility.    Joseph  supplied  Ritala  with  her  driver's  license,  registration,  and  proof  of  

insurance.  She never said that someone else had been driving the vehicle, or that Ritala  


was ticketing the wrong person.  

                    Joseph decided to contest the speeding ticket, and the case went to trial  


several months later.  At the trial, Joseph testified that she had not been driving the van.  


She stated that her brother was the one driving the van, and that she had arrived in a  


different vehicle.  Joseph further testified that, by the time Ritala arrived at the house, her  

brother had already left.  Joseph's brother then took the stand and corroborated Joseph's  


                    The magistrate presiding over the trial found Joseph guilty of speeding.  He  


declared that Joseph and her brother had both committed perjury.  Ritala then referred  

the case to the district attorney's office, leading to perjury indictments against Joseph and  


her brother.  

                    Joseph and her brother were tried jointly in a single trial.  Officer Ritala was  


the only witness for the State.  To impeach Ritala's account of events, Joseph's attorney  


sought to introduce a video filmed by a defense investigator.  This video was intended  


to be a re-enactment of Ritala's initial observations of the van as it traveled south on  


                                                                -3-                                                          2404

----------------------- Page 4-----------------------

Boniface Parkway, except that both the van and the investigator's car (from which the  


video was being shot) were traveling at the speed limit (45 miles per hour).  

                    According to Joseph's attorney, this video demonstrated that Ritala could  


not have observed the kind of identifying information he claimed to have seen - i.e.,  


that  the  driver  of  the  van  was  a  lighter-skinned  black  female  with  wiry  hair.    In  


particular, the defense attorney claimed that the video showed that such observations  


were not possible, given the vehicles' relative speed and the reflective glare of the van's  


                    But Ritala testified that the video did not accurately depict what a person  


could  see  under  those  conditions.    Specifically,  Ritala  noted  that  the  video  camera  


produced a one-dimensional view, while a person would see things in three dimensions,  


and from a shifting aspect. Ritala also pointed out that a person's eyes are able to "track"  


the driver of another car in a way that a video camera can not (i.e., focus attention on the  


driver, to the exclusion of other details of the scene).   

                    To explain the factors he was talking about, Ritala drew an analogy to  

trying to capture the motion of a pitched baseball with a video camera.  To the video  


camera, the ball might appear to be a blur.  But a human observer would be able to  


constantly refocus their eyes, make small adjustments to their angle of observation, and  


track the baseball, thus yielding a much clearer perception of the ball's trajectory and  


                    Ritala concluded that, although the video accurately depicted the physical  

scene on Boniface Parkway, the video did not accurately depict what he was able to  


                    The trial judge denied the defense request to introduce the video. The judge  


concluded that the video did not accurately depict Ritala's opportunity to observe the  

driver of the van - that there were too many discrepancies between the conditions under  


                                                               -4-                                                          2404

----------------------- Page 5-----------------------

which  the  video  was  shot  and  the  conditions  that  existed  on  the  day  of  Ritala's  


           Why we uphold the trial judge's ruling  

                     On appeal, Joseph argues that the video constituted an "experiment" to test  


the  credibility  of  Ritala's  assertions  that  he  was  able  to  observe  certain  identifying  


characteristics of the driver of the van as the van went by him.  Joseph acknowledges that  


there might be arguable differences between the conditions surrounding Ritala's original  


observations and the conditions under which the video was shot.  But Joseph argues that  


these potential differences were immaterial to the purpose of the videotaping experiment,  


and thus the differences were not significant enough to render the video inadmissible.  


                     Under Alaska law, evidence of an experiment is admissible "only if the  

conditions of the experiment were substantially similar to the conditions at the time of  


the event in issue."  Beck v. State Department of Transportation and Public Facilities ,  


837 P.2d 105, 113 (Alaska 1992).   

                    Beck  explains  that,  even  though  there  may  be  identifiable  differences  


between  the  conditions  of  the  experiment  and  the  conditions  of  the  event,  this  fact,  


standing alone, does not mean that the experiment lacks "substantial similarity" to the  


event.  Rather, the legal concept of "substantial similarity" assumes that there will be  

some  differences,  or  at  least  some  arguable  differences.    To  assess  whether  these  

differences defeat a finding of "substantial similarity", a trial judge must evaluate several  



                     First, the judge must identify the real purpose of the experiment.  Beck , 837  


P.2d at 113. As the supreme court explained in Bierria v. Dickinson Manufacturing Co. ,  


36 P.3d 654, 658-59 (Alaska 2001), the concept of "substantial similarity" hinges on  


                                                                 -5-                                                          2404

----------------------- Page 6-----------------------

what the experiment is offered to prove.  Even though there are identifiable dissimilari-                                          

ties between the circumstances of the experiment and the real-life event being litigated,   

the experiment can still be "substantially similar" if these dissimilarities are irrelevant to     

what the proponent of the experimental evidence is trying to prove.  

                           Next,  the  judge  should  assess  the  degree  to  which  the  experiment  is  a  

subject of precise science, and whether the experiment would be considered valid by  

persons skilled or knowledgeable in the field which the experiment concerns.  Beck , 837  


P.2d at 113.   

                           If the judge concludes that the dissimilarities between the experiment and  


the event being litigated are indeed relevant to what the proponent of the experiment is  


trying to prove, then the judge must ask further questions:  Are these dissimilarities likely  


to distort the results of the experiment to a degree that the result of the experiment is not  


relevant?  Or can the dissimilarities be adjusted for, or explained, so that the jury gains  


a  satisfactory  understanding  of  how  these  dissimilarities  affected  the  results  of  the  

experiment, and an understanding of which aspects of the results remain relevant?  Ibid.  

                           Because the test for "substantial similarity" comprises these several factors,  

and because reasonable judges might evaluate  or weigh these factors differently, an  

appellate court employs an "abuse of discretion" standard when it reviews a trial judge's  


ruling on this issue. 1  


       1      See  Bierria , 36 P.3d at 659.  In general, see                                    Booth v. State , 251 P.3d 369, 373 (Alaska   

App. 2011):  

              The "abuse of discretion" standard applies to situations where (a) the law does not   

       specify  a  particular  "right"  answer  or  response  to  the  situation,  but  instead  only  

       specifies the factors or criteria that a judge should consider, and (b) reasonable judges,  

       given  the  same  facts  and  applying  the  correct  criteria,  might  come  to  differing  


       conclusions  about  how  to  deal  with  the  problem.    In  other  words,  the  "abuse  of  


                                                                                      -6-                                                                                2404

----------------------- Page 7-----------------------

                    Here, the video was offered for the purpose of showing that Ritala could  

not have observed the identifying characteristics of the driver of the van.  The record  


reveals significant reasons to doubt the relevance or probative force of the video when  


offered for this purpose.  Accordingly, we conclude that the trial judge did not abuse his  


discretion when he refused to allow Joseph to introduce the video.  

           The superior court's rejection of proposed sentencing mitigator (d)(9)  

                    Because  Joseph  was  a  second  felony  offender,  she  was  subject  to  a  

presumptive   sentencing   range   of   4   to   7   years'   imprisonment   for   her   perjury  


conviction. 2                                           

                     Joseph proposed two mitigating factors under AS 12.55.155(d):  (d)(9)  


(that her conduct was among the least serious within the definition of the offense), and  


(d)(12) (that the harm she caused by her conduct, both in the present offense and in the  


past,   has   been   consistently   minor   and   inconsistent  with   a   substantial  term   of  


                     The sentencing judge ruled in Joseph's favor on mitigator (d)(12), but the  

judge rejected proposed mitigator (d)(9).  Joseph appeals this adverse ruling.   

                    Before we address the merits of Joseph's claim of error with respect to  

mitigator (d)(9), we must first address a preliminary issue that arises from this Court's  


decision in Jordan v. State , 895 P.2d 994 (Alaska App. 1995).   

      1   (...continued)

     discretion" standard of review applies to situations where the law allows or requires

     the judge to exercise discretion - to reach a decision by considering and weighing

     various factors, and then doing what seems most fair under the circumstances. 



          See AS 11.56.200(c) (classifying perjury as a class B felony), and AS 12.55.125(d)(3)  

(prescribing a 4- to 7-year presumptive range for a second felony offender).  

                                                                -7-                                                          2404

----------------------- Page 8-----------------------

                    (a)    The  rule  announced  in  Jordan  v.  State,   and   why  we  now  

          overrule that aspect of Jordan  

                   The defendant in Jordan argued that the harm caused by his conduct was  


consistently so minor as to be inconsistent with a substantial term of imprisonment -  


the mitigator that is currently numbered (d)(12) and which, at the time of Jordan , was  


numbered (d)(13). 3                                                            

                               In Jordan , this Court held that a defendant is not entitled to claim  


the benefit of mitigator (d)(12) unless the defendant also proves mitigator (d)(9) - i.e.,  


proves that the conduct underlying the defendant's current offense is among the least  

serious within the definition of the offense.   

                   Here is the pertinent portion of the Jordan decision:  



                             Jordan's            second          proposed             factor,         ...  


                   AS   12.55.155(d)[(12)],   calls   for   a   two-pronged   deter- 


                   mination:  first, the [sentencing] court must determine on a  

                   case-by-case  basis  that  the  defendant's  present  and  prior  

                   crimes are consistently minor; second, the court must find  

                   that  the  past  and  present  crimes,  taken  as  a  whole,  are  

                   inconsistent  with  a  substantial  term  of  imprisonment.    ...  

                   Because  the  first  prong  of  factor  (d)[(12)]  focuses  on  the  

                   seriousness of Jordan's current and past crimes, requiring a  


                   finding of minor harm for each offense, our conclusion that  


                   his current offense is not among the least serious in its class  

                   precludes [a] finding that ... mitigating factor [(d)(12)] has  

                   been established.   

Jordan , 895 P.2d at 1000.  

                   In Joseph's case (as we explained above), the superior court found that  

Joseph had proved mitigator (d)(12), but the court also found that Joseph had not proved  

     3    Jordan , 895 P.2d at 1000.   

                                                             -8-                                                       2404  

----------------------- Page 9-----------------------

mitigator (d)(9).  Under the rule announced in Jordan , these two findings would be                                                   

legally inconsistent, and we would therefore have to vacate the superior court's findings  

and direct the superior court to address these two mitigators again.  (This is precisely  


what we did recently in Hamilton v. State , unpublished, Alaska App. Memorandum  

Opinion No. 5874 (September 5, 2012), 2012 WL 3877764 at *5.)  

                       But we are now convinced that the Jordan rule is wrong, and that it was  


wrong at the time it was announced. 4  


                       Our  primary  reason  for  questioning  the  Jordan  rule  is  that  it  renders  

mitigator (d)(12) largely superfluous or insignificant.  Under Jordan , a defendant must  


prove  mitigator  (d)(9)  before  the  defendant  is  eligible  to  invoke  mitigator  (d)(12).  


In essence, Jordan turns mitigator (d)(9) into a lesser component of mitigator (d)(12).  

                       But under Alaska's presumptive sentencing laws, the proof of any single  

mitigating  factor  triggers  a  sentencing  judge's  authority  to  impose  a  sentence  of  


imprisonment below the applicable presumptive sentencing range.  Moreover, the extent  

of  the  judge's  sentencing  authority  -  i.e.,  how  far  below  the  applicable  range  the  

defendant's sentence can be - is the same regardless of whether the defendant proves  


a single mitigator or a half-dozen mitigators.  See AS 12.55.155(a).  

                       In  other  words,  the  crucial  distinction  is  between  (a)  cases  where  no  


mitigators are proved, and (b) cases where at least one mitigator is proved.  Because of  


this, a defendant who proves mitigator (d)(9) gains no significant legal advantage by also  


      4     Under the doctrine of stare decisis , when a controlling decision of this Court is called  

into question, "it is not enough ... to show that the [prior] decision was honestly debatable     

at the time, and that it might have gone the other way".                                   Rather, before we overrule an earlier   

decision, we must be convinced that the decision "was originally erroneous" - in other   

words, was never legally justifiable - or that the decision "is no longer sound because of     

changed conditions".  Erickson v. State , 950 P.2d 580, 587 (Alaska App. 1997) (quoting  


State v. Dunlop , 721 P.2d 604, 610 (Alaska 1986)).  

                                                                         -9-                                                                  2404

----------------------- Page 10-----------------------

proving mitigator (d)(12).  Once the defendant proves mitigator (d)(9), the sentencing  

judge has the authority to reduce the defendant's sentence below the presumptive range.  

The defendant is then free to argue that the judge, in exercising this authority, should  

consider the fact that the defendant has consistently caused relatively little harm -  

without having to prove this assertion by clear and convincing evidence, and without  

having to meet the other procedural requirements to prove mitigator (d)(12).  

                   As this Court noted in  Carpentino v. State, 42 P.3d 1137, 1142 (Alaska  

App. 2002), "one of the primary rules of statutory construction [is] that a court should  


assume that the legislature did not enact redundant or useless statutes."  Both this Court  


and  the  Alaska  Supreme  Court  have  declared  that  "[o]ne  of  the  prime  directives  of  


statutory construction is to avoid interpretations that render parts of a statute inoperative  


or superfluous, void or insignificant."  Champion v. State, 908 P.2d 454, 464 (Alaska  

App. 1995), quoting  22,757 Square Feet, More or Less v. State, 799 P.2d 777, 779  

(Alaska 1990).  Our holding in Jordan violates this principle.  

                   Moreover, we conclude that the Jordan rule ignores an important difference  

between the wording of mitigators (d)(9) and (d)(12).   

                   Mitigator (d)(9) declares that a defendant's sentence can be mitigated if  

"the conduct constituting the [defendant's present] offense was among the least serious  


conduct included in the definition of the offense".  For this purpose, the word "conduct"  



includes the defendant's mental state and  motive,  


                                                                           as well as the consequences  (or  


potential consequences) of the defendant's conduct.    

     5    See, e.g., McGee v. State , 95 P.3d 945, 949 (Alaska App. 2004); Miller v. State , 44  

P.3d 157, 158 (Alaska App. 2002); Martin v. State , 973 P.2d 1151, 1155-56 (Alaska App.  

 1999); Schuenemann v. State, 781 P.2d 1005, 1007 (Alaska App. 1989).  

     6    Lewandowski v. State , 18 P.3d 1220, 1222 (Alaska App. 2001); Parks v. State , 731  


                                                           -10-                                                       2404  

----------------------- Page 11-----------------------

                   Mitigator (d)(12), on the other hand, focuses solely on the consequences  

of  the  defendant's  criminal  conduct.                Under  (d)(12),  a  defendant's  sentence  can  be  


mitigated if "the facts surrounding the commission of the [present] offense and any  

previous offenses by the defendant establish that the harm caused by the defendant's  

conduct is consistently minor and inconsistent with the imposition of a substantial period  


of imprisonment".  (Emphasis added)  

                   It is true that in Ison v. State , 941 P.2d 195, 198 (Alaska App. 1997), this  


Court  adopted  a  broad  reading  of  the  term  "harm".    We  held  that,  for  purposes  of  


mitigator (d)(12), "harm" includes not only the actual physical injuries or property losses  


occasioned  by  the  defendant's  criminal  conduct,  but  also  "the  risks  ...  [and  the]  

disruption   of  the  social  fabric"  that  the  defendant's  criminal  conduct  entailed.  


Nevertheless, mitigator (d)(12)'s focus on the harm caused by the defendant remains  

narrower than the inquiry into the seriousness of the defendant's conduct that takes place  


under mitigator (d)(9).  

                   Because of this, there will be times when, even though the defendant's  

current offense caused only minor harm, that offense would not qualify as "among the  


least serious within the definition of the offense" based on other factors.  Thus, the  

defendant would not be able to prove mitigator (d)(9), even though the relatively minor  

consequences of his current offense would be fully consistent with proof of mitigator  


                   This analysis suggests that a series of offenses causing only minor harm  

could  qualify  for  mitigator  (d)(12),  even  though  none  of  these  offenses,  taken  


individually, would qualify as "among the least serious" for purposes of mitigator (d)(9).  

     6    (...continued)  

P.2d 597, 597-98 (Alaska App. 1987); State v. Richards, 720 P.2d 47, 48-49 (Alaska App.  


                                                           -11-                                                        2404  

----------------------- Page 12-----------------------

                   Although the legislative commentary to mitigator (d)(12) is relatively terse,  

it implicitly supports this result.  Mitigator (d)(12) was added by the legislature in 1980.  


See 1980 SLA, ch. 102, sec. 41.  The accompanying legislative commentary provides  


only one example of what the legislature intended the mitigator to achieve:  


                   One  situation  where  this  mitigator  might  be  applicable  is  

                   when  the  defendant  has  committed  a  number  of  felony  

                   property  offenses,  such  as  check  forgeries,  but  they  all  


                   involve relatively small amounts of money.   

1980 Senate Journal, Supp. No. 44 (May 29), p. 26.   

                   This legislative example suggests that even though the defendant's series  


of check forgeries might each have been a typical instance of the offense, in terms of the  

defendant's  conduct  and  mental  state,  the  defendant  would  nevertheless  qualify  for  

mitigator (d)(12) because of the consistently minor harm caused by these offenses.  

                   For these reasons, we now overrule the portion of Jordan which held that  

a defendant must prove mitigator (d)(9) to be eligible to prove mitigator (d)(12).  As  


applied to Joseph's case, this means that there is no legal inconsistency between the  

sentencing  judge's  decision  in  Joseph's  favor  on  mitigator  (d)(12)  and  the  judge's  

rejection of mitigator (d)(9).  

                   (b)  Why we overrule the superior  court's rejection of proposed  

          sentencing mitigator (d)(9)  

                   When  the  sentencing  judge  explained  why  he  concluded  that  Joseph's  


conduct was not among the least serious within the definition of perjury, the judge made  


statements suggesting that mitigator (d)(9) could never apply to the crime of perjury:  


                                                            -12-                                                      2404

----------------------- Page 13-----------------------

                              The  Court:    Lying  under  oath  is  lying  under  oath.  

                    Certainly,  the  whole  reason  the  legislature  chose  to  make  

                    [this  offense]  a  [class]  B  felony  is  that  they  take  it  very  

                    seriously if someone [lies].   Whether it's ... a small claims  


                    [action] or a million-dollar civil lawsuit, whether it's traffic  

                    court or felony court, if you take the stand and take the oath,  


                    you're supposed to be telling the truth.  

                    If  the  sentencing  judge  indeed  meant  to  say  that  mitigator  (d)(9)  is  


inapplicable when a defendant is sentenced for perjury, then the judge rejected mitigator  


(d)(9) for an improper reason.   

                    We  agree  with  the  sentencing  judge  that  the  legislature's  decision  to  


classify perjury as a class B felony reflects the legislature's judgement that perjury is a  


serious crime.  But this same reasoning applies to every class B felony (and to every  


class A and unclassified felony as well).  Even when a defendant has committed an  


offense that the legislature deems serious, the function of mitigator (d)(9) remains the  

same:  to allow sentencing courts to identify those instances in which the defendant's  


conduct is among the least serious within the definition of the offense.   

                    The State acknowledges this potential problem in the sentencing judge's  


remarks, but the State argues that the sentencing judge did not mean that mitigator (d)(9)  


can never apply to a perjury sentencing.  

                    The State notes that the perjury statute, AS 11.56.200(a), encompasses any  


and   all   "false   sworn   statements",   and   not   just   false   testimony   in   court.                              See  

AS 11.56.240(2), which defines "sworn statement" (for purposes of perjury prosecu- 

tions) as "[any] statement knowingly given under oath or affirmation attesting to the truth  


of what is stated, including a notarized statement", as well as "[any] statement knowingly  


given under penalty of perjury under AS 09.63.020."  

                                                              -13-                                                        2404

----------------------- Page 14-----------------------

                   Based on this broad definition of "sworn statement", the State argues that  


Joseph's sentencing judge was really trying to say that lying under oath while testifying  


in court can never be among the least serious forms of perjury.   

                   We reject the State's argument for two reasons.  First, although the State's  


suggested interpretation of the sentencing judge's remarks might be plausible, it is by  

no  means  obviously  true.    Thus,  we  would  in  any  case  ask  the  judge  to  clarify  his  



                   Second, it is by no means obvious that an in-court act of perjury could  

never be among the least serious types of perjury.  For example, a witness might lie  


about something that is completely immaterial to the decision of the case, simply because  


the truth would be embarrassing to the witness or to some other person who the witness  

cares about.  Thus, even if we assume that the sentencing judge meant that an act of  

perjury committed while testifying in court can never be "among the least serious", this  


assertion is questionable.   

                   We therefore vacate the judge's decision regarding mitigator (d)(9), and we  

remand Joseph's case to the superior court for reconsideration of this issue.  


                   Joseph's conviction for perjury is AFFIRMED, but we REMAND Joseph's  

case to the superior court for renewed proceedings regarding mitigator (d)(9).  

                                                           -14-                                                     2404

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