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Hinson v. State (7/1/2016) ap-2508

Hinson v. State (7/1/2016) ap-2508


            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-11839  

                                               Appellant,                             Trial Court No. 3PA-12-1768 CR  


                                                                                                       O P I N I O N  


                                               Appellee.                                     No. 2508 - July 1, 2016  

                       Appeal from the Superior Court, Third Judicial District, Palmer,  


                       Beverly Cutler, Judge.  

                       Appearances: David D. Reineke, under contract with the Public  


                       Defender  Agency,  and  Quinlan  Steiner,  Public  Defender,  

                       Anchorage, for the Appellant.  Diane L. Wendlandt, Assistant  


                       Attorney General, Office of Criminal Appeals, Anchorage, and  


                       Craig W. Richards, Attorney General, Juneau, for the Appellee.  


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


                        Superior Court Judge. *  


                       Judge ALLARD.  

                       A jury convicted Patrick Leon Hinson of felony failure to register as a sex                                                 

offender and sixth-degree misconduct involving a controlled substance (based on his                                                                

      *     Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  

Constitution and Administrative Rule 24(d).  

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

possession of marijuana).                                        In this appeal, Hinson argues that the trial court committed                                                            

plain error by:                       (1) allowing the jury to hear that the criminal charge was failure to                                                                                                   

register "as a sex offender"; (2) admitting evidence of the specific sex offense that gave                                                                                                              

rise to Hinson's duty to register; and (3) allowing the State to make an improper closing                                                                                                         

argument about the dangerousness of sex offenders and the need for the registration                                                                                                    

requirement.   Hinson also argues that there was insufficient evidence to convict him of                                                                                                                      

marijuana possession.                                 1  


                                 For  the  reasons  explained  here,  we  conclude  that  the  evidence  was  


sufficient to convict Hinson of marijuana possession and Hinson has not shown plain  


error on any of his other claims.  We therefore affirm Hinson's convictions.  


                Facts and proceedings  


                                 OnJuly 12,2012,AlaskaStateTrooperJoel Miner stopped Hinson because  


he was driving without a seatbelt.  Because Hinson had a bottle of alcohol in his pocket,  


Miner asked to search the vehicle for open containers of alcohol.  Hinson consented to  


the search, and Miner found a baggie of marijuana in the center console.  Miner later  


testified that when he discovered the marijuana, Hinson "in a way, acknowledged that  


it was his" by stating, "Hey, it's not a gun, it's just a little ... bit of weed."  


                                 Miner decided to issue a citation for the drug offense, and he asked Hinson  


for his home address.  Hinson provided his address and told Miner he was a registered  


sex offender.  When Miner ran Hinson's information through the Alaska Public Safety  

         1      Hinson also makes the conclusory assertion that the court erred by admitting evidence                                                                   

of his bail conditions in this case.  But because Hinson makes no legal argument related to  

this claim, we conclude that it is waived for inadequate briefing.                                                                                  Petersen v. Mutual Life Ins.  

Co. of N.Y., 803 P.2d 406, 410 (Alaska 1990) ("Where a point is not given more than a                                                      


cursory statement in the argument portion of a brief, the point will not be considered on  


                                                                                                    - 2 -                                                                                              2508

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

Information Network, he discovered that the address Hinson provided did not match the                                                                                                                 

address Hinson had reported to the sex offender registry.                                                                                 When Miner asked Hinson                          

about this discrepancy, Hinson explained that he had moved four months earlier, in                                                                                                   

February 2012, when he was "kicked out" by his girlfriend.                                                                                   He said that he believed he                               

had until the following year to update his sex offender registration.                                                             

                                Hinson was ultimately charged with felony failure to register as a sex                                                                                              


offender for failing to notify the registry of his change of address.                                                                                                                     

                                                                                                                                                           (Hinson was charged  


with a felony because this was his second offense.) Hinson was also charged with sixth- 



degree misconduct involving a controlled substance for possessing marijuana. 


                                The superior court bifurcated Hinson's trial on the failure to register charge  


so the jury would not hear that Hinson had a prior conviction for failure to register unless  


he was convicted of the current offense.  The superior court also considered whether it  


should "sanitize" the charge so the jury only heard that Hinson had been charged with  


"failure to register" and not that he had been charged with "failure to register as a sex  


offender."  But the court decided not to do this, and both the prosecutor and the defense  


attorney agreed with the court's decision.  


                                The prosecutor told the jury in opening statement and later introduced  


evidence to show that Hinson had been convicted of a misdemeanor sex offense and that  



he was therefore required to register as a sex offender.                                                                         The evidence included Hinson's  


sex offender registration file, which contained forms Hinson had signed acknowledging  


that he was required to notify the sex offender registry within one business day of any  


changein address. TheStatealso introduced several documents (including atwo-month- 

        2       AS 11.56.835(a)(1).  

        3       AS 11.71.060(a)(2)(A).  

        4       AS 11.41.438(a)(1) and AS 11.31.100(a), respectively.  

                                                                                                 - 3 -                                                                                          2508

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

  old traffic citation and the bail paperwork in this case) that listed the new address Hinson                                                                                                                                                                                                                                                                                                                                                                                                                                       

 had provided to Trooper Miner.                                                                                                                                    

                                                                                        Hinson did not object to the admission of any of this evidence.                                                                                                                                                                                                                                                                                                                                                                        At one   

 point, the defense attorney questioned the necessity of identifying Hinson's underlying                                                                                                                                                                                                                                                                                                                                                                                                                    

  sex offense as attempted third-degree sexual abuse of a minor.                                                                                                                                                                                                                                                                                                                                                                           But when the State                                                                                   

  sought to admit the copy of Hinson's 2001 judgment - which showed that he had                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

  entered a no contest plea to the misdemeanor offense of attempted third-degree sexual   

  abuse of a minor and was sentenced to 6 months to serve - the defense attorney told the                                                                                                                                                                                                                                                                                                                                                                                                                                                                      

judge that he had no objection.                                                                                                         

                                                                                        Hinson called one witness in his defense: his former girlfriend Melissa                                                                                                                                                                                                                                                                                                                                                                

  Leach, who testified that Hinson had lived with her and their two children for eight years                                                                                                                                                                                                                                                                                                                                                                                                                                                      

 until their breakup in February 2012.                                                                                                                                                                                                                           Leach testified that Hinson had occasionally                                                                                                                                                                                  

 returned for overnight visits and babysitting, that he had stated his intention to reconcile                                                                                                                                                                                                                                                                                                                                                                                                                           

 with Leach and move back in, and that he had never been away from the home for more                                                                                                                                                                                                                                                                                                                                                                                                                                                              

 than thirty consecutive days.                                                                                                                          

                                                                                        Based on this testimony, Hinson's attorney argued in closing that because                                                                                                                                                                                                                                                                                                                                                              

  Hinson intended to return to Leach's residence, and because he was never away from the                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

 residence for more than thirty consecutive days, he had not changed his residence for                                                                                                                                                                                                                                                                                                                                                                                                                                                                         

 purposes of the sex offender registry. (Department of Public Safety regulations provide                                                                                                                                                                                                                                                                                                                                                                                                                                         

 that a sex offender "is considered to have changed residence on the date that the offender                                                                                                                                                                                                                                                                                                                                                                                                                                 

  leaves the residence without intending to return to continue living there, or the date that                                                                                                                                                                                                                                                                                                                                                                                                                                                              

 the offender has been away from the residence for 30 consecutive days, whichever                                                                                                                                                                                                                                                                                                                                                                                                                            

  occurs first."                                                                      5)  

                       5                       13 Alaska Administrative Code 09.040(b).  

                                                                                                                                                                                                                                                                            - 4 -                                                                                                                                                                                                                                                                 2508

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

                                         The    jury  convicted    Hinson    of    failure    to    register    and    sixth-degree  

 misconductinvolvingacontrolled                                                                        substance. Hinson                                        subsequently stipulated that hehad   

 a prior conviction for failure to register as a sex offender and the court entered judgment                                                                                                                                                

 on the felony to register offense.                                                                    

                                         This appeal followed.                 

                      Why we conclude that the court's failure to redact "sex offender" from the                                                                                                                                           

                    failure to register charge was not plain error                                                                             

                                          On appeal, Hinson argues that the jury should have been told that he was                                                                                                                                           

 charged with "failure to register," not with "failure to register                                                                                                                              as a sex offender                                     ."    He  

 contends that the additional information that he was a sex offender was irrelevant and                                                                                                                                                                      

 prejudicial to his defense.                          

                                         But the duty to register as a sex offender only arises if a defendant has been                                                                                                                                   


 convicted of a sex offense as defined in AS 12.63.100(6).                                                                                                                                                                                         

                                                                                                                                                                                  In the superior court, Hinson  


 never offered to stipulate that he had been convicted of a sex offense that gave rise to his  


 duty to register as a sex offender.   And Hinson has not explained how, without the  


 stipulation, the State could otherwise have proved that Hinson had a duty to register with  


 the Alaska Department of Public Safety.  


                                         Hinson also failed to preserve this claim in the superior court. His attorney  


 never asked the superior court to keep the full statutory definition of the offense from the  


jury.  To the contrary, when the judge raised this issue sua sponte, Hinson's attorney  


 expressly declined to object to the prosecutor informing the jury that Hinson was a sex  


 offender and convicted of a misdemeanor sex offense.  

           6         See AS 12.63.010 (requiring sex offenders to register); AS 12.63.100(5)-(6) (defining  


 a sex offender as a person convicted of a sex offense and enumerating the crimes that qualify  

 as a "sex offense").  

                                                                                                                              -  5 -                                                                                                                     2508

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

                                Hinson now argues that, because the superior court raised this issue                                                                                               sua  

sponte   and was clearly on notice of the legal                                                                    issue, we should disregard the usual                                        

requirement of a contemporaneous objection and review his claim as though it had been                                                                                                             

preserved.   This argument is meritless.                                                        As the State points out, because the defense                                              

attorney disclaimed any objection to telling the jury that he was charged with "failure to                                                                                                              

register as a sex offender," the trial court never made a legal ruling for us to review and                                                                                                         

our review is therefore limited to plain error.                                              


                                We find the reasoning of                                  State v. McLaughlin                                                                                           

                                                                                                                                             persuasive on this issue. In  


McLaughlin, the defendant was charged with "felon in possession" - that is, possession  



of a concealable firearm by a convicted felon.                                                                 In the trial court, McLaughlin offered to  


stipulate that he had a prior felony, and he asked the judge to withdraw that element from  


the  jury's  consideration.                                      The  State  declined  the  offered  stipulation  but  the  judge  


nonetheless granted McLaughlin's request, ruling that the jury would only consider  


whether McLaughlinknowingly possessedaconcealablefirearm(unless theprior felony  



became relevant for some other purpose). 


                                The State petitioned for interlocutory reviewof this ruling, and we reversed  


the trial court's decision.  We acknowledged that McLaughlin had a strong evidentiary  


argument to exclude the evidence of his prior felony - because once a  defendant  


concedes aprior conviction,thatconviction normally hasnoevidentiaryvalueapart from  



the impermissible inference that the defendant has a propensity to commit crimes. 

        7       860 P.2d 1270 (Alaska App. 1993).  

        8       Id. at 1271.  

        9       Id. at 1272.  

        10      Id. at 1273-74.  

                                                                                                 - 6 -                                                                                          2508

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

Nevertheless,   we   concluded   that   there   were   policy   concerns   that   militated   against  

withholding this information from the jury.                                                         

                                   Our   first   concern   stemmed   from the                                                         necessity   of   a   jury   instruction   to  

address why the defendant faced criminal penalties for "firearm possession" - conduct                                                                                                                     

that was not normally a crime.                                                   We concluded that instructing the jury not to consider                                                                  

this question would have only exacerbated the potential for prejudice: jurors who knew                                                                                                                           

it was illegal for a felon to possess a firearm would simply assume McLaughlin had a                                                                                                                                       

prior felony, while less knowledgeable jurors would still likely speculate about the                                                                                                                                  



                                   Our second concern was that hiding this type of information fromthe jurors  


- information central to the nature of the criminal charge - would encourage mistrust  



                                                                                   We concluded that the better approach (one that courts  

of the criminal justice system. 


regularly follow in other circumstances) was to trust the jurors to make proper use of the  




evidence without being swayed by its potential to prejudice the accused. 


                                  We ultimately concluded that the statutory definition of the crime charged  



is relevant information for the jury in any given case.                                                                                         And this principle "holds true  


regardless of which elements of the crime are actually disputed, for without knowing the  


true nature of the charges, the jury is deprived of context for consideration of the issues  



actually in dispute." 

         11      Id . at 1275.  

         12      Id. at 1277.  

         13      Id.  

         14      Id.  

         15      Id.  

                                                                                                         -  7 -                                                                                                  2508

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

                    We believe that this reasoning has equal force here. Instructing the jury not  


to consider why Hinson had been charged with "failure to register" would likely have  


the same result:   jurors who were aware of the sex offender registration law would  


simply assume that Hinson was a sex offender, and all the court would accomplish by  


disguising the nature of the charge would be to engender distrust of the legal process.  


Jurors who were less knowledgeable would no doubt speculate about Hinson's criminal  


history - particularly since the core of the State's proof was the forms Hinson had  


signed acknowledging his duty to notify the Department of Public Safety of his change  


of address  - forms that would  have  required substantial redaction  to  remove any  


reference to a sex offense.  


                    We also conclude that it was necessary for the jurors to understand the  


specific nature of Hinson's duty to register so that they could fairly evaluate whether the  


State had proved the intent element of the offense, which  was  the main dispute at  


Hinson's trial.  If a juror imagined that Hinson's duty to register was equivalent to, for  


instance, the duty to inform the Department of Motor Vehicles of a change of address,  


the  juror  might  conclude  that  Hinson  could  have  easily  overlooked  the  duty  -  


particularly in the midst of the breakup of a long relationship.  But the same juror might  


reach a different conclusion if the juror knew that the duty at stake was Hinson's duty  


to update his sex offender registry.  


                    We therefore find that the superior court did not commit plain error by  


allowing the jury to hear that Hinson had been charged with "failure to register as a sex  



                                                              -  8 -                                                        2508

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

                                      Why we conclude that Hinson has not shown plain error with regard to the                                                                                                                                                                                                                                                                                                                   

                                     evidence of his underlying sex offense                                                                                                                                

                                                                         Hinson   next   argues   that   the   superior   court   committed  plain   error   by  

 allowing the State to identify his underlying sex offense as attempted third-degree sexual                                                                                                                                                                                                                                                                                                                                                        

 abuse of a minor (a misdemeanor), and to introduce documents setting out the sentence                                                                                                                                                                                                                                                                                                                                                

he received (6 months).                                                                                                             He argues that this evidence had no relevance to the charges                                                                                                                                                                                                                                           

 against him and that it prejudiced his defense.                                                                                                                                                           

                                                                         But Hinson did not object to the admission of this evidence at trial. Indeed,                                                                                                                                                                                                                                                                                      

when the judge                                                                      sua sponte                                                   called a bench conference to discuss this matter, the defense                                                                                                                                                                                                                              

 attorney stated that he had no objection to the admission of the judgment of conviction.                                                                                                                                                                                                                                                                                                                                

                                                                         It is true that, by                                                                  this point, theprosecutor and severalwitnesses had already                                                                                                                                                                                                                      

identified Hinson's underlying sex offense.                                                                                                                                                                                                         But when the judge invited the defense                                                                                                                                                

 attorney to object to admission of the judgment, the attorney said nothing to suggest that                                                                                                                                                                                                                                                                                                                                                                      

he was withholding his objection because the prejudice to his case had already occurred;                                                                                                                                                                                                                                                                                                                                           

the attorney simply declined to object, as had been the case throughout the trial.                                                                                                                                                                                                                                                                                                                                      

                                                                         Faced   with   these   circumstances,   we   believe   that   the   trial   judge   could  

reasonably assume that the defense attorney had made a tactical decision that it would   

be better for the jurors to know that Hinson had been convicted of a relatively minor sex                                                                                                                                                                                                                                                                                                                                                                           

 offense - a misdemeanor for which he received a sentence of only 6 months to serve                                                                                                                                                                                                                                                                                                 

 and a probationary term - than for the jurors to speculate about the more serious sex                                                                                                                                                                                                                                                                                                                                                                             


 crimes that Hinson might have committed.                                                                                                                                                                                                                                                                                                                                                                 

                                                                                                                                                                                                                                                       We therefore find no plain error.  

                   16                Cf. Moreno v. State                                                                                      , 341 P.3d 1134, 1143-45 (Alaska 2015) (plain error review is  

precluded where the record is clear that counsel made an intentional and informed choice not  

to object or where the benefit conferred on the defendant by counsel's action is readily                                                                                                                                                                                                                                                 


                                                                                                                                                                                                                               -  9 -                                                                                                                                                                                                                     2508

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            Why we conclude that the prosecutor's closing argument was not plain                                                   


                       Hinson   claims  that   the   prosecutor's   summation   to   the   jury   included  

improper argument calculated to appeal to the passions and prejudices of the jury.                                                                    17  


Specifically, he claims that the following remarks, which occurred at the beginning of  


the prosecutor's summation, constitute reversible error:  


                       At jury selection ... I asked a lot of you, why do you look up  


                       people in the sex offender registry? Because you want to  


                       know  where  people  are  living.                            You  want  to  know  this  


                       information  because  the  community  wants  to  know  this  


                       information because people are buying houses and they rely  


                        on that information.   People have children that go trick or  


                       treating.  They rely on that information to protect their kids.  


                       They rely on the information in the registry that it's going to  


                       be truthful and accurate. The community, the State of Alaska  


                       relies on that information.  


The defense did not object to these remarks.  


                        On appeal, the State argues that the remarks were not improper because a  


prosecutor is permitted to comment on the valid purposes underlying a law when those  


purposes  are  relevant  -  for  example,  to  address  concerns  about  potential  jury  


nullification.  Although we agree with this general principle, and agree that a simple  


reference to the underlying legislative purpose of the residency requirement would not  


necessarily have been improper, we conclude that the prosecutor's remarks here -  


specifically, her references to children trick or treating and the larger community dangers  


posed by sex offenders - exceeded the bounds of permissible argument and improperly  

      17    See Patterson v. State, 747 P.2d 535, 538 (Alaska App. 1987) (arguments calculated  

to appeal to the passions and prejudices of the jury are improper).  

                                                                       -  10 -                                                                 2508

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

encouraged the jury to decide the case based on emotional considerations rather than the                                              




                     We do not agree, however, with Hinson's contention that these remarks  


constitute plain error or that they represent such egregious prosecutorial misconduct as  



                                                                                    These were isolated, brief remarks  

to "undermine the fundamental fairness of the trial." 


that were not repeated in the remainder of the prosecutor's opening summation or in her  


rebuttal - both of which were otherwise measured in tone and properly focused on the  



evidence at trial.               Thus, when viewed in the context of the record as a whole, we  


conclude that the prosecutor's remarks, although improper in their appeal to the jury's  


emotions,  do  not  constitute  plain  error  and  do  not  require  reversal  of  Hinson's  


           There was sufficient evidence to convict Hinson of marijuana possession  


                     Lastly, Hinson argues that there was insufficient evidence to convict him  


of sixth-degree controlled substance misconduct because the State failed to prove that  


the marijuana found in the center console of his vehicle belonged to him.  


                     To support this claim, Hinson points to cases in which the Alaska Supreme  


Court and this Court have held that a defendant's mere presence in a car containing drugs  


is insufficient to establish knowing possession of those drugs.21  


                                                                                                    But in those cases, other  

      18   See Patterson, 747 P.2d at 538-41;                      see also  American Bar Association, Criminal  

Justice Standards for the Prosecution Function, Standard 3-6.8(c) (4th ed.).  

      19   Cook v. State, 36 P.3d 710, 729 (Alaska App. 2001); Potts v. State, 712 P.2d 385, 390  


(Alaska App. 1985).  

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

     21   Egner v. State, 495 P.2d 1272, 1273-74 (Alaska 1972); Marion v. State , 806 P.2d 857,  

860 (Alaska App. 1991).  

                                                                -  11 -                                                           2508

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


people who might have possessed the contraband were present.                                                                                                                                                                                                                             Here, Hinson was the                                                             

owner and sole occupant of the vehicle.                                                                                                                                              Moreover, the trooper testified that Hinson                                                                                                                         

made furtive movements, reaching from his waistband and moving his hand toward the                                                                                                                                                                                                                                                                                        

center console where the drugs were found. And when the trooper found the marijuana,                                                                                                                                                                                                                                                     

Hinson did not deny ownership of it.                                                                                                                                 Instead, he said, "Hey, it's not a gun, it's just a                                                                                                                                       

little ... bit of weed."                                                                         We conclude that this evidence was sufficient for the jury to                                                                                                                                                                                           

conclude that Hinson knowingly possessed the marijuana, and that he was therefore                                                                                                                                                                                                                                                              

guilty of sixth-degree misconduct involving a controlled substance.                                                                                                                                                                                    


                                                          The judgment of the superior court is AFFIRMED.  


               22            Egner, 495 P.2d at 1273-74; Marion , 806 P.2d at 860.  

                                                                                                                                                                               -  12 -                                                                                                                                                                           2508  

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