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Olson v. State (11/13/2015) ap-2479

Olson v. State (11/13/2015) ap-2479


            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

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                                                                                            Court of Appeals No. A-11627  

                                                 Appellant,                               Trial Court No. 4BE-12-1078 CR  


                                                                                                           O P I N I O N  


                                                 Appellee.                                No. 2479 - November 13, 2015  


                        Appeal from the District Court, Fourth Judicial District, Bethel,  

                        Bruce Ward, Magistrate Judge.  

                        Appearances:                Gavin  Kentch,  Law  Office  of  Gavin  Kentch,  


                        LLC, Anchorage, for the Appellant.   Ben Wohlfeil, Assistant  


                        District Attorney, Anchorage, and Craig W. Richards, Attorney  


                         General, Juneau, for the Appellee.  

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



                        Judge ALLARD.  

                        A jury convicted Rose M. Olson of importation of alcoholic beverages into                                                        

a local option community, a class A misdemeanor.                                             1  


                         Olson now appeals, raising three claims of error.  She argues first that the  


trial court improperly limited her cross-examination of the State's main witness by  

      1     AS 04.11.499(a); AS 04.16.200(e)(1).  

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

preventing her from cross-examining the witness about an alleged probation violation                                                                                                                                                                                                                                                                                                                   

 and a false statement to the court.                                                                                                                                                    She   argues  next that the prosecutor committed                                                                                                                                                     

prosecutorial misconduct by referring to the jurors by name during his closing argument.                                                                                                                                                                                                                                                                                                                                                                  

Last, she argues that the judge relied on improper considerations at her sentencing.                                                                                                                                                                                                                                                                                     

                                                                    For the reasons explained here, we reject Olson's claims and affirm her                                                                                                                                                                                                                                                                                         

conviction and sentence.                                                     

                                                                    (Olson also separately argues that her judgment of conviction has a clerical                                                                                                                                                                                                                                                           

 error.    The State agrees.                                                                                                     Olson's judgment of conviction incorrectly states she was                                                                                                                                                                                                                                     

convicted under AS 04.16.200(e)(1).                                                                                                                                                               But Olson was actually convicted of violating                                                                                                                                                       

AS 04.11.499(a).                                                                          Accordingly, we direct the district court to amend the judgment to                                                                                                                                                                                                                                                                              

reflect the correct statute under which Olson was convicted.)                                                                                                                                                                                             

                                 Background facts   

                                                                    In October 2012, Alaska State Trooper Angela Womack received a tip that                                                                                                                                                                                                                                                                                       

 a woman named Pauline Roland was planning to import alcohol and marijuana into                                                                                                                                                                                                                                                                                                                                                 

Goodnews Bay, a local option community. A few weeks after receiving the tip, Trooper                                                                                                                                                                                                                                                                                                                        

Womack   learned   that   Roland   and   her   friend,   Rose   Olson,   had   checked   in   for   an  

 afternoon flight from Bethel to Goodnews Bay.                                                                                                                                                                          

                                                                    Trooper Womack intercepted the two women at the Bethel airport.                                                                                                                                                                                                                                                                                                   A  

 subsequent search of their bags uncovered thirteen 750 milliliter bottles of alcohol and                                                                                                                                                                                                                                                                                                                                         

26.5  grams of marijuana. Roland's name tags were on the bags in which the alcohol was                                                                                                                                                                                                                                                                                                                                            

 found.   But the clothes in one of the bags belonged to Olson.                                                                                                                                                                                                                                                    Olson's name tag was on                                                                                              

the bag without any alcohol but Roland's prescription medication was found in this bag.                                                                                                                                                                                                                                                                                                                                                                   

                                                                    Roland admitted that the marijuana was hers but she told the trooper that  


the alcohol belonged to Olson and that Olson had switched the name tags.  Olson told  


the trooper that the alcohol was Roland's, although she admitted that she (Olson) had  

                                                                                                                                                                                                               - 2 -                                                                                                                                                                                                    2479

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

helped pack the alcohol in the bags and also admitted that one of the bags with alcohol                                                     

contained her clothes.     

                        TheStatecharged both women with                               importationofalcoholicbeverages                             into  



a local option community, a class A misdemeanor.                                          Roland was also charged with sixth- 



degree misconduct involving a controlled substance based on the marijuana. 


                        Roland subsequently entered into a plea agreement with the State whereby  


she agreed to plead guilty to the misdemeanor drug charge and agreed to testify against  


Olson at trial in exchange for the State dismissing the importation charge.  


            Olson's trial  


                        At Olson's trial, Roland testified against Olson in accordance with her plea  


agreement. Roland testified that the alcohol belonged to Olson and that Olson alone had  


packed the alcohol into the bags.  


                        Roland was cross-examined aboutthedetails ofher pleaagreement,andshe  


admitted that she was testifying against Olson in exchange for the State's dismissal of  


the importation charge against her.  Roland was further impeached by various inconsis- 


tent statements that she had made to Trooper Womack about the marijuana and the  



                        During her testimony, Trooper Womack acknowledged that Roland had  


initially lied to her about the marijuana and "changed her story" at least seven times.  


Trooper Womack also testified that Olson admitted to helping Roland pack the alcohol  


and also claimed ownership of some of the clothes packed with the alcohol.  

      2     AS 04.11.499(a); AS 04.16.200(e)(1).  

      3     AS 11.71.060(a)(1).  

                                                                        - 3 -                                                                   2479

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

                                                                                          The prosecutor's closing argument focused on the fact that Olson was                                                                                                                                                                                                                                                                                                                                                                          

      charged as both an accomplice and a principal, and the prosecutor argued to the jury that                                                                                                                                                                                                                                                                                                                                                                                                                                             

      it should convict Olson as an accomplice even if it did not entirely believe Roland's                                                                                                                                                                                                                                                                                                                                                                                                              

     version of events.                                                

                                                                                          The   jury   convicted   Olson  of   importation.     At   sentencing,   the   judge   

      sentenced Olson to 89 days with 80 suspended (9 days to serve), a $1,500 fine, and 18                                                                                                                                                                                                                                                                                                                                                                                                                                                        

     months of probation.                                              

                                                                                          Olson appeals.   

                                                Olson's argument that the court improperly limited her cross-examination                                                                                                                                                                                                                                                                             

                                                of Roland   

                                                                                         During the defense case, Olson recalled Roland to the witness stand and                                                                                                                                                                                                                                                                                                                                                                            

      attempted to ask her whether she had consumed alcohol "within the month or two prior"                                                                                                                                                                                                                                                                                                                                                                                                                                   

      to her change of plea hearing.                                                                                                                                                                       The prosecutor objected on relevancy grounds.                                                                                                                                                                                                                                                                             The  

      defense attorney argued that the question was relevant as impeachment because Roland                                                                                                                                                                                                                                                                                                                                                                                                                            

      falsely claimed at her plea colloquy that she had been sober for 20 years.                                                                                                                                                                                                                                                                                                                                                                                       The trial court                                             

      sustained the prosecutor's objection, ruling that Evidence Rule 608 precluded Olson                                                                                                                                                                                                                                                                                                                                                                                                                                   

      from questioning Roland about a specific instance of dishonesty.                                                                                                                                                                                                                                                                                                                                                         

                                                                                    Olson challenges this ruling on appeal, asserting that she should have been                                                                                                                                                                                                                                                                                                                                                                      

permitted to impeach Roland with Roland's "prior inconsistent statement" to the court                                                                                                                                                                                                                                                                                                                                                                                                                                             

 about her sobriety.                                                                                                       But the trial court was within its discretion to restrict Olson from                                                                                                                                                                                                                                                                                                                                    

 questioning Roland about a specific instance of dishonesty that had no clear relevancy to                                                                                                                                                                                                                                                                                                                                                                                                                                                             

the issues in this case.                                                                                                                            (We also note that Roland's statement at her change of plea                                                                                                                                                                                                                                                                                                                        

 colloquy that she had been sober for 20 years does not qualify as a "prior inconsistent                                                                                                                                                                                                                                                                                                                                                                                               

 statement."   At trial, Roland testified that she had been sober for a long time and claimed                                                                                                                                                                                                                                                                                                                                                                                                                     

that her contrary statement to the trooper was not true.)                                                                                                                                                                                                                                                              

                                                                                                                                                                                                                                                                      - 4 -                                                                                                                                                                                                                                                    2479

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

                                   Olson also argues that the trial court's ruling unfairly prevented her from                                                                                                                         

questioning Roland about her alleged drug use and an apparent probation violation that                                                                                                                                     

was   never   pursued   by   the   State.     Olson   asserts   that   this   evidence   was   relevant   as  

impeachment evidence because it demonstrated Roland's continued need to curry favor                                                                                                                                    

with the State.                        

                                   But, as the State points out and the record demonstrates, Olson explicitly                                                                                              

abandoned this line of questioning in the proceedings below, and she never actually                                                                                                                            

sought to introduce this evidence or obtain a ruling on its admissibility.                                                                                                                        (Nor did she             

make any offer of proof with regard to this evidence.)                                                                                           Because Olson abandoned this                                              

issue in the trial court,                                       her   arguments about the alleged probation                                                                            violation   are not   


properly before this Court on appeal.                                                                


                  Olson's argument that the prosecutor committed misconduct by referring  


                  to the individual jurors by name during the prosecutor's closing argument  


                                   During his closing argument, the prosecutor referred to the jurors by name  


on two separate occasions.  The first time this occurred was when the prosecutor was  


explaining accomplice/principal liability to the jury.  The prosecutor told the jury that  


Olson  had  been  charged  both  as  a  principal  and  as  an  accomplice,  and  he  further  


explained that the jurors did not need to be unanimous as to Olson's role to convict her.  


To illustrate this point, the prosecutor referred to the jurors by name:  


                                   For example, Mr. M[], Mr. N[] and Ms. W[], you could say  


                                   she was the main player, Ms. Roland was the helper. And Ms.  


                                   J[], Ms. E[] and Mr. Mu[] could say just the opposite - no  


                                   way, she was the helper, Ms. Olson was the helper and Ms.  

           4        See Pierce v. State, 261 P.3d 428, 431 & n.5 (Alaska App. 2011);                                                                                                Bryant v. State, 115  

  P.3d 1249, 1258 (Alaska App. 2005).  

                                                                                                             - 5 -                                                                                                    2479

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

                      Roland was the main player.                      Your verdict is the same either       

                      way, guilty.       5  


                      The  second  time  the  prosecutor  used  a  juror  name  was  when  he  was  


explaining  the  State's  burden  of  proof  beyond  a  reasonable  doubt.                                                 During  this  


explanation, the prosecutor used the metaphor of "flopping" in basketball.  After using  


the term "flopping," the prosecutor referred to Mr. Mu[] by name, noting that "[if] any of  


you need a reminder about what a flop is in basketball, talk to Mr. Mu[]."  (Apparently  


the prosecutor and Mr. Mu[] had discussed basketball and "flopping" in voir dire.)  


                      On appeal, Olson acknowledges that her attorney did not object to the  


prosecutor's use of the jurors' names but she asserts that the prosecutor's conduct was so  


egregious that it undermined the fundamental fairness of her trial and requires reversal of  



her conviction. 


                      Because Olson did not object to the prosecutor's conduct in the trial court,  



Olson must prove plain error on appeal.                            To establish plain error, Olson must show that:  


(1) the error would have been obvious to any competent judge or lawyer, (2) the record  


does not obviously demonstrate that Olson's lawyer made a tactical decision not to object  


to the error, (3) the error involved substantial rights, and (4) Olson was in fact prejudiced  



by this error. 


                      As an initial matter, we question whether the prosecutor's conduct in this  


case  qualifies  as  obvious  error.                      As  Olson  acknowledges,  this  is  an  issue  of  first  


impression in Alaska and there are no Alaska cases approving or disapproving the use of  


jurors' names during closing argument.  

       5     We have redacted the jurors' names to protect their privacy.  

       6     See Rogers v. State, 280 P.3d 582, 589 (Alaska App. 2012).  

       7     See Adams v. State, 261 P.3d 758, 770 (Alaska 2011).  

       8     See Moreno v. State, 341 P.3d 1134, 1139 (Alaska 2015); Adams , 261 P.3d at 773.  

                                                                    - 6 -                                                              2479

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

                              In her briefing, Olson cites to multiple cases from other jurisdictions that                                                                              

have directly condemned this practice.                                                9              

                                                                                         The primary concern voiced by these courts is  


that, by singling out an individual juror by name, the attorney is attempting to play to the  


juror's particular prejudices and sympathies and to encourage the jury, as a whole, to  



                                                                                     As the Illinois Supreme Court has warned, "[s]uch  

 decide the case on improper grounds. 

tactics produce for the State no benefit whatever, since a conviction will not stand where it  

 appears that the jury's verdict may have been influenced by improper argument.  11  

                                                                                                                                                                      "       Another  

 concern   is   that   the   practice   of   referring   to   jurors   by   name   constitutes   inappropriate  

pandering that can breed over-familiarity and distract the jury from its solemn obligation                                                                                 

to decide the case impartially based on the evidence presented at trial.                                                                                  12  

          9      See, e.g., People v. Freeman, 882 P.2d 249, 288 (Cal. 1994) ("[A]rguments should be  


  addressed to the jury as a body and the practice of addressing individual jurors by name  


  during  the  argument  should  be  condemned  rather  than  approved.")  (internal  citations  


  omitted); People v. Davis, 264 N.E.2d 140, 143 (Ill. 1970); ("[T]he tactic of addressing jurors  


  individually, by name, and attempting to play upon their personal circumstances and fears  


  is disapproved by this court."); Milby v. Louisville Gas & Elec. Co. , 375 S.W.2d 237, 241  

  (Ky. 1963) ("We do not consider it good practice for counsel, in closing argument, to address  


  individual jurors by name."); State v. Morais, 819 A.2d 424, 429 (N.J. App. Div. 2003)  


  (holding it improper for an attorney to refer to a juror individually by name, experience or  


  background during closing argument); Pendleton v. Evetts, 611 S.W.2d 607, 609 (Tenn. App.  


   1981) ("Our decisions and the great weight of authority elsewhere indicate that it is improper  


  to address a juror individually or by name during argument.").  

          10     See, e.g., Morais, 819 A.2d at 429.  


          11     Davis, 264 N.E.2d at 143 (internal citations omitted).  

          12     See, e.g., McMahan v. State , 354 P.2d 476, 484 (Okla. Crim. App. 1965).  

                                                                                            - 7 -                                                                                    2479

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

                         But despite the considerable weight of authority condemning this practice,                                                    


it is nevertheless rare for a court to reverse a conviction based on this error alone.                                                                                   


Reversal is likewise not appropriate here.  


                         As we previously recounted, Olson's case involves two instances where the  


prosecutor referred to the jurors by name during the closing argument.  


                          In  the  first  instance,  the  prosecutor  divided  the  jurors  into  two  camps  


(apparently at random) for the purpose of explaining that the jurors did not need to reach  


unanimous agreement as to whether Olson was guilty because of her own actions or,  


instead, because of her complicity in Roland's actions. While it would perhaps have been  


better if the prosecutor had explained this principle by referring to a hypothetical division  


of the jury in generic terms - e.g., "some of you may believe X, while others of you may  


believe  Y"  - the  use  of  the  juror  names  in  the  prosecutor's  example  was  benign.  


Although the prosecutor referred to the jurors by name, he did not single out individual  


members of the jury, or address them personally, or attempt to play to their personal  


sympathies, prejudices, or life circumstances.  


                          The prosecutor's second use of a juror's name was different.   Here, the  


prosecutor  did  single  out  a  particular  juror  for  attention,  based  on  that  juror's  life  


circumstances  or  experience  (i.e.,  his  knowledge  of  basketball).                                                                 But  the  juror's  


knowledge  of  basketball  had  no  actual  relevancy  to  this  case.                                                               Additionally,  the  


prosecutor's strained metaphor involving "flopping" in basketball was confusing and  



        13     Cf. State v. Garcia, 1981 WL 5586, at *6 (Ohio App. May 15, 1981) (unpublished)  


  (acknowledging that it is improper for a prosecutor to address jurors by name but also noting  


  that "this court has failed to find any cases where the trial court's decision was reversed  

  based on this error alone").  

        14    In her reply brief, Olson argues that the "flopping" metaphor was improper because  



                                                                                - 8 -                                                                        2479

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

                                                       Therefore, although we do not approve of the prosecutor's decision to refer                                                                                                                                                                                                                  

to individual jurors by name and to single out one juror and encourage the other jurors to                                                                                                                                                                                                                                                                     

consult with him, we do not find any reason to believe that Olson was prejudiced by the                                                                                                                                                                                                                                                                    

prosecutor's conduct.                                                                      Accordingly, we reject this claim of plain error on appeal.                                                                                                                                                         

                            Olson's challenge to her sentence                                                                      

                                                       Olson   argues   that   the   trial   court   relied   on   improper   considerations   in  

formulating her sentence.                                                                                  Specifically, she claims that the court unfairly increased her                                                                                                                                                                                

 sentence based on an implicit finding that the felony aggravator AS 12.55.155(c)(16) -                                                                                                                                                                                                                                                                      

"the defendant's criminal conduct was designed to obtain substantial pecuniary gain and                                                                                                                                                                                                                                                                  

the risk of prosecution and punishment for the conduct is slight" - applies to her case.                                                                                                                                                                                                                                                                                    

Olson contends that there was no evidentiary basis for finding this statutory aggravator                                                                                                                                                                                                                                   

in her case.              

                                                       We   do   not   agree   with   Olson   that  the trial                                                                                                                                  court   "found"   this   statutory  

aggravator, whether explicitly or implicitly.                                                                                                                                           During his sentencing remarks, the judge                                                                                                                

commented on the fact that unlawfully selling alcohol in the bush is a high-profit-margin                                                                                                                                                                                            

enterprise with a relatively low rate of detection.  But the judge also made it very clear                                                                                                                                                                                                                           

that he was "not inferring that [Olson] was going to resell [the alcohol she imported]."                                                                                                                                                                                                                            

                                                       The   judge   explained   that   the   primary   focus   of   Olson's   sentence   was  

deterrence, both specific and general.                                                                                                                    His comments also focused on the relatively large                                                                                                                                       

              14            (...continued)  

    it associated Olson and her defense attorney with deceitful sports behavior heavily criticized  


    in mainstream media.  Olson did not make this argument in her opening brief.  As a general  


    matter, we do not address arguments that were raised for the first time in a reply brief.  See  


   Berezyuk v. State, 282 P.3d 386, 398 (Alaska App. 2012).   In any case, we note that the  


   prosecutor's flopping metaphor was so confusing and seemingly inapt that we question  


    whether it could have had any impact on the jury, even assuming it was improper.  

                                                                                                                                                                            - 9 -                                                                                                                                                               2479

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

 quantity of alcohol involved and the negative consequences of alcohol importation to a                                                               

 dry community.   

                                 We   therefore   reject   Olson's   claim   that   the   judge   relied   on   improper  

 considerations at trial.                                 In addition, having independently reviewed the record and the                                                                                          

judge's sentencing remarks, we conclude that Olson's sentence is not clearly mistaken.                                                                                                                               15  



                                 We AFFIRM Olson's conviction and sentence, but we direct the district  


 court to amend the judgment of conviction to reflect the correct statute under which Olson  


 was convicted.  

           15      McClain v. State , 519 P.2d 811, 813-14 (Alaska 1974).  

                                                                                                      - 10 -                                                                                               2479

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

          In the Court of Appeals of the State of Alaska 

Rose M . Olson,                                           ) 

                                                          )      Court of Appeals No. A-11627 

                                   Appellant,             ) 

                   v.                                     )                     Order 


State of Alaska,                                          ) 


                                   Appellee.              )   Date of Order : November 13, 2015 

Trial Court Case # 4BE-12-01078CR 

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

         Upon consideration of the Appellant's motion to publish our decision in this case, 

                  IT IS ORDERED :  

                  1.  The motion to publish is GRANTED . 

                  2.  Memorandum  Opinion  No.  6240,  issued  on  September  23,  20 15  is 

WITHDRAWN and Opinion No. 2479 is issued in its place. 

         Entered at the direction of the Court.  

                                                               Clerk of the Appellate Courts 



                                                              Marilyn May 

cc:      Court of Appeals Judges 

         Central Staff 

         Magistrate Judge Ward 


Distribution :   


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