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Miller v. State (9/16/2016) ap-2520

Miller v. State (9/16/2016) ap-2520


              The text        of   this opinion can be corrected before the opinion is published in the                            

             Pacific Reporter              .   Readers are encouraged to bring typographical or other formal                              

             errors to the attention of the Clerk of the Appellate Courts:    

                                                   303 K Street, Anchorage, Alaska  99501  

                                                                   Fax:  (907) 264-0878  

                                                        E-mail:  corrections@  

                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                    



                                                                                                     Court of Appeals No. A-11320  


                                                     Appellant,                                    Trial Court Nos. 3KN-08-568 CR  


                                                                                                                & 3KN-08-740 CR  


                                                                                                                  O  P  I  N  I  O  N  



                                                     Appellee.                                     No. 2520 - September 16, 2016  


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


                           Carl Bauman, Judge.  


                           Appearances:                     Elizabeth            D.      Friedman,               Assistant            Public  


                           Advocate, Appeals and Statewide Defense Section, and Richard  


                           Allen, Public Advocate, Anchorage, for the Appellant.   Eric A.  


                           Ringsmuth,  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 Hanley,  


                           District Court Judge.*  



                           Judge MANNHEIMER.  

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

Constitution and Administrative Rule 24(d).                             

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


                    Richard  I.  Miller  was  found  guilty  of  more  than  a  hundred  counts  of  


possessing child pornography, as well as two counts of soliciting other people to tamper  


with evidence.   (Following his arrest, Miller telephoned certain individuals and asked  


them to delete various materials from his home and business computers, or to remove the  


computers themselves.)  


                    On appeal, Miller contends that the trial judge committed error by allowing  


the prosecutor to introduce evidence that Miller possessed a book entitled The Man They  


Called a Monster - an academic study of Clarence Osborne, an Australian man who  


advocated sexual relations between adults and children,  and who professed  to have  


engaged in sex with hundreds of boys.   For the reasons explained in this opinion, we  


conclude that any error in the trial judge's ruling was harmless.  


                    Miller also argues that the trial judge committed plain error by allowing the  


prosecutor,  during the State's summation to the jury,  to refer to the fact that Miller  


possessed additional child pornography for which he was not charged.  For the reasons  


explained in this opinion, we conclude that the prosecutor's reference to this uncharged  


pornography did not constitute plain error.  


                    Miller  asserts  that  the  superior  court  committed  error  by  assessing  a  


separate "police-training" surcharge for each of Miller's 116 convictions.  We agree with  


Miller, and we direct the superior court to impose only a single surcharge.  


                    Finally, Miller objects to various assertions in his pre-sentence report.  For  


the reasons explained here, we direct the superior court to reconsider Miller's objections  


to the pre-sentence report.  

                                                               - 2 -                                                          2520

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

           The   evidence that Miller possessed a copy of                            The Man They Called                  a  



                     Prior to Miller's trial, the judge issued a protective order that barred the  


State from introducing evidence that Miller possessed literature dealing with pedophilia  


unless Miller took the stand and disclaimed knowledge of the pornographic images found  


at his home and business.  


                     At trial, Miller did take the stand and denied possessing the pornographic  


images.   After Miller gave this testimony, the trial judge concluded that the probative  


force of Miller's possession of literature dealing with pedophilia  now outweighed the  


potentialfor unfair prejudice posed by this evidence.  However, to minimize the potential  


for unfair prejudice, the judge  limited the prosecutor to questioning Miller about only  


two  works:          an  article  entitled  Kolya  and  a  book  entitled  The  Man  They  Called  a  


Monster .  Because the prosecutor could not locate a copy of Kolya, the prosecutor only  


cross-examined Miller about The Man They Called a Monster.  


                     This book, The Man They Called a Monster, is not a work of pornography.  


Rather, it was written by an academic; it is a study of an Australian man who advocated  


sexual relations between adults and children, and who professed to have engaged in sex  


with hundreds of boys.  


                     The      prosecutor          suggested         that     Miller's       possession         of     this    book  


demonstrated  Miller's  sexual  interest  in  young boys,  while  Miller  asserted  that  he  


possessed the book because it was a detailed study of a sociological problem.  


                     The judge's decision to allow the prosecutor to cross-examine Miller about  


this book is questionable.   We discussed a related issue in Linehan v. State, 224 P.3d  


 126, 148 (Alaska App. 2010), where we explained that courts are normally quite cautious  


about allowing the government to introduce evidence of a defendant's tastes in literature  

                                                                - 3 -                                                          2520

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

 or cinema when this evidence is offered to prove that the defendant likely committed the                                                                                                                                                                                                                                                                                                                                                                                                                                                         

types of crimes or misdeeds portrayed in those books or movies.                                                                                                                                                                                                                                                                                                                                                               

                                                                                     Here, the book that Miller possessed was not a work of child pornography.                                                                                                                                                                                                                                                                                                                                                                                                           

It was an academic examination of a man who advocated and engaged in                                                                                                                                                                                                                                                                                                                                                                                                                        pedophilia.   

 The fact that Miller possessed a copy of this book had only marginal probative value on                                                                                                                                                                                                                                                                                                                                                                                                                                                              

the question of whether Miller himself would engage in such criminal activities.                                                                                                                                                                                                                                                                                                                                                                                                                                       

                                                                                      (See our discussion of the related point in                                                                                                                                                                                                                             Linehan :    "[M]any law-abiding   

people are drawn to characters in literature or in the cinema who are villainous or roguish                                                                                                                                                                                                                                                                                                                                                                                                                            

 ... even though they would not dream of engaging in the same crimes or misdeeds."                                                                                                                                                                                                                                                                                                                                                                                                                                                        224  

P.3d at 148.)                                                                            

                                                                                     Nevertheless, we conclude that any error                                                                                                                                                                                                                                        was harmless.                                                                                    It is true that,                                                 

 during summation, the prosecutor argued briefly that Miller's possession of this book                                                                                                                                                                                                                                                                                                                                                                                                                                             

 showed that he was sexually interested in children.                                                                                                                                                                                                                                                                          But the State's case rested primarily                                                                                                                                         

 on the dozens of pornographic images found on the computer hard drive in                                                                                                                                                                                                                                                                                                                                                                                                                                   Miller's  

 locker at work, and on the child pornographic CDs that were found in Miller's dresser,                                                                                                                                                                                                                                                                                                                                                                                                                            

 and on Miller's telephone calls from the jail asking people to delete computer files or                                                                                                                                                                                                                                                                                                                                                                                                                                                              

remove computers from his home and business.                                                                                                                                                                                                                                                                       

                                                                                      Given the other evidence in this case, we conclude that the admission of                                                                                                                                                                                                                                                                                                                                                                                         

 evidence that Miller possessed                                                                                                                                                                                a copy of                                                             The Man They Called a Monster                                                                                                                                                                                                   did not   

 appreciably affect the jury's decision.                                                                                                                                                                                                             Accordingly,   even   if it was error to allow the                                                                                                                                                                                                                                         


prosecutor to introduce this evidence, the error was harmless.                                                                                                                                                                                                                                                                                                                                                   

                      1                    See Love v. State                                                                                      , 457 P.2d 622,634 (Alaska1969) (holdingthat, for instances of non-                                                                                                                                                                                                                                                                                                                      

 constitutional error, the test for harmlessness is whether the appellate court "can fairly say                                                                                                                                                                                                                                                                                                                                                                                                                                                  

that the error did not appreciably affect the jury's verdict").                                                                                                                                                                                                                                           

                                                                                                                                                                                                                                                                       - 4 -                                                                                                                                                                                                                                                                  2520

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


           The prosecutor's comment, during summation, that the police found child  


          pornography on a computer - pornography that Miller was not charged  


           with possessing  


                     During Miller's trial, one of the police witnesses testified (with no objection  


from the defense) that, after Miller made his telephone calls from jail asking people to  


delete  or  hide  evidence,  the  police  obtained  a  second  search  warrant.                                    During the  


execution of this second warrant, the police found additional child pornography  on a  


computer.  However, the State never charged Miller with possessing this additional child  




                     During her rebuttal summation, the prosecutor listed for the jury all of the  


places where child pornography was found at Miller's home and business,  and  the  


prosecutor  mentioned  the  pornography  that  was  found  on  the  computer  during the  


execution of the second search warrant.  


                     Although Miller's attorney had not objected when the police officer gave  


this testimony, the defense attorney objected to the prosecutor's statement in summation.  


The defense attorney pointed out (correctly) that Miller had never been charged with  


possessing any of the pornography found on this computer, and the attorney asked the  


judge to  expressly instruct the jury that Miller was not charged with possessing this  




                     Instead of giving a limiting or clarifying instruction, the trial judge  asked  


the prosecutor to clarify this point when she resumed her summation.  The prosecutor  


then told the jurors:  



                               Ladies and gentlemen,  the defendant is charged for  


                     [possessing]   the   pornography   that   was   found   on   the  


                     [separate] hard drive ... and on those CDs that were found in  


                     the dresser.  But you certainly heard testimony about other  

                                                               - 5 -                                                          2520

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


                     computers   of   his   that   were   searched,   and   that   child  


                     pornography was found on, although he was not charged for  


                     that other child pornography.  


Miller's attorney was apparently satisfied with the prosecutor's clarification, because the  


defense attorney did not renew his objection, nor did the defense attorney ask the trial  


judge for a supplemental instruction on this matter.  


                     But now, on appeal, Miller raises a different objection to the prosecutor's  


comments  about  the  child  pornography  found  on  the  other  computer.                                         Miller  now  


contends that the prosecutor mischaracterized the trial testimony when the prosecutor  


asserted that the police found additional child pornography on a computer in  Miller's  


home.        Miller asserts that the  computer in question was actually located at Miller's  


business - and he argues that this distinction is an important one, because it is more  


likely that other people might have had access to Miller's business computer.  


                     Because Miller's attorney never raised this objection in the trial court, he  


must now show plain error.  We have examined the record of Miller's trial, and we find  


no plain error.  In fact, we find no error at all - because, contrary to Miller's claim on  


appeal, the police officer clearly testified that the computer at issue was searched under  


the authority of the second search warrant, and that this second search warrant was for  


Miller's home, not his business.  


           The superior court should not have imposed a separate surcharge for each  


           of Miller's 116 convictions  


                     AS 12.55.039(a)(1) declares that when a defendant is convicted of a felony,  


the court must order the defendant to pay a $100 "surcharge" in addition to any fine or  


other   monetary  penalty  prescribed   by   law   for   the  offense.                                    Similarly,   under  

                                                               - 6 -                                                          2520

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

AS 12.55.039(a)(2)-(3), when a defendant is convicted of a misdemeanor, the court must                                                                                                                                                                                        

impose a surcharge of either $75 (if the conviction is for driving under the influence or                                                                                                                                                                                              

breath-test refusal) or $50 (for all other misdemeanors).                                                                                                                                   

                                            The superior court concluded that this statute required the court to order                                                                                                                                                      

Miller to pay a separate $100 surcharge for each of his 114 felony convictions, as well                                                                                                                                                                                         

as a separate $50 surcharge for each of his two misdemeanor convictions.                                                                                                                                                                            Thus, Miller   

was ordered to pay surcharges totaling $11,500.                                                                                                                 

                                            The parties refer to these surcharges as "police training surcharges",                                                                                                                                                                 but  

AS 12.55.039 does not use this phrase.                                                                                                The statute simply describes                                                                           this   monetary  

penalty as a "surcharge", and subsection (d) of the statute expressly provides that all                                                                                                                                                                                              

money collected under the statute "shallbe                                                                                                 deposited into the generalfund                                                                     and accounted   

for under AS 37.05.142" -                                                                            i.e.,   in the same manner as normal fines or any other                                                                                                                


program receipt.                                            

                                            It is true that another statute, AS 18.65.225, authorizes the legislature to  


appropriate money to fund statewide police training in an amount equal to the estimated  


income  that  will be  collected  under  AS  12.55.039  plus  the  income  collected  under  


AS 28.05.151 (fines and forfeited bail from state traffic offenses)  and AS 29.25.074  


(surcharges collected by municipalities for violation of their local ordinances).  


                                            But AS 18.65.225 does not require the legislature to spend this money for  


police training.                                        Indeed,  Article IX,  Section 7 of the Alaska  Constitution forbids the  


legislature  from  dedicating  state  revenues  to  any  special  purpose,  except  for  the  


percentage of mineral lease and royalty revenue that must be placed in the Permanent  


Fund, and except as required by the federal government for state participation in federal  


           2          See  AS 12.55.035(g).                                                 

                                                                                                                                        - 7 -                                                                                                                                    2520

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


programs.   The final sentence of AS 18.65.225 expressly acknowledges this constitu- 


tional prohibition, by declaring, "Nothing in this [statute] creates a dedicated fund."  


                    In  other  words,  even  though  AS  12.55.039  refers  to  the  money  as  a  


"surcharge", this surcharge is the legal equivalent of a mandatory additional fine.  


                    The question is whether the legislature intended this surcharge to be levied  


once for each criminal case, or whether the legislature intended to impose a separate  


surcharge for each individual count that the defendant was convicted  of.                                           In Miller's  


case, the difference is dramatic:  he will either be charged $100, or he will be charged  



                    The State takes the position that the superior court's ruling was correct -  


that Miller is required to pay a separate surcharge for each of his 116 convictions.  


                    To support this interpretation, the State notes that AS 12.55.039(a) declares  


that a defendant who is "convicted of a felony" shall be assessed a $100 surcharge.  The  


State argues that, in this context, when the legislature speaks of imposing a surcharge on  


defendants "convicted of a felony", this is equivalent to saying that defendants will be  


assessed a surcharge for "every felony".  The State notes that if revenue generation was  


the legislature's aim, the statute would better fulfill this purpose - i.e., it would generate  


more revenue -  if we construe it to require a separate surcharge for each individual  




                    The State also points out that AS 12.55.039 is worded differently from a  


sister provision,  AS 12.55.041,  which imposes a "correctional facility" surcharge on  


defendants who are convicted of any crime under Alaska law and who have been jailed  


at some point during the proceedings.  


                     Subsection (b) of the correctional surcharge statute explicitly declares that  


a court "shall impose a single surcharge ... on a defendant being sentenced for one or  


more crimes in a single judgment."  The statute further declares that this surcharge is  

                                                               - 8 -                                                          2520

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


$100 "if the judgment includes a sentence for a felony", but only $50 "if the judgment  


does not include a sentence for a felony."  


                    Based on the difference in the wording of these two statutes,  the  State  


argues   that  if  the  legislature  had  wanted  to  impose  only  one  surcharge  under  


AS 12.55.039, no matter how many convictions were entered against a defendant, the  


legislature could easily have worded AS 12.55.039 the way it worded AS 12.55.041.  


                    The State's argument is facially plausible, but it leads to results that are  




                    As the State notes in its brief, the legislative history of AS 12.55.039 shows  


that it was intended to generate revenue that might be used to defray the State's cost of  


training law enforcement officers.  The legislature reasoned that when people break the  


law, this creates "increased needs" to train law enforcement officers  and corrections  


officers.  See the Minutes of the House Judiciary Committee for January 28, 1998 (the  


committee's discussion of House Bill 261, the 1998 amendment to the statute).  As one  


member of the committee explained, "Those who are creating ... the need for training  


will ... have a surcharge on their fines that will go towards the Alaska police training  



                    (Sic:   As we  have explained,  AS 18.65.225 expressly declares that the  


surcharges assessed under AS 12.55.039 are not earmarked for police training.  Rather,  


these surcharges simply put more money into the general fund, and the legislature may  


budget this money for police training if it wishes.)  


                    But the fact that the legislature wished to generate revenue to fund police  


training does not directly answer  the  question that confronts us now:   whether one  


surcharge should be assessed per criminal case as opposed to a separate surcharge for  


every count that the defendant is convicted of.  

                                                              - 9 -                                                          2520

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

                                            There is no obvious correlation between the number of traffic citations and                                                                                                                                                         

criminal cases                                    that   are   filed   in   Alaska   and   the   amount   of   training that                                                                                                                       Alaska   law  

enforcement officers will need.                                                                         There is even less of a connection between the number                                                                                                      

of counts that any particular defendant is convicted of and any increased need for law                                                                                                                                                                                          

enforcement training.                                                    

                                            Miller's case vividly illustrates this lack of connection.                                                                                                                             Miller possessed   

over a hundred examples of child pornography, and the district attorney's office charged                                                                                                                                                                          

him with a separate count for each one.                                                                                           But each additional piece of child pornography                                                                  

had essentially no bearing on the additional amount of law enforcement training - if any                                                                                                                                                                                     

-  that was necessitated by, or that could be attributed to, Miller's case.                                                                                                                                                               And yet, under                 

the   State's   interpretation   of   AS   12.55.039,   Miller   would   be   liable   for   a   separate  

surcharge for each separate                                                                     example of child pornography - more than a hundred                                                                                                              


                                            A court                    should   not construe statutes in a way "that leads to unfair or                                                                                                                                             

                                                                     3  or in a manner which yields results that are inexplicably draconian  

incongruous results",                                                                                                                                                                                                                                       


or that have  no  discernible purpose.                                                                                               This principle causes us to reject the superior  


court's interpretation of the statute, and to hold instead that only one surcharge should  


be imposed under AS 12.55.039 in any one criminal case.  


                                            Thus, in Miller's case, the superior court should have assessed a surcharge  


of $100.  


           3          Malutin v. State                                   , 198 P.3d 1177, 1185 (Alaska App. 2009).                                                                                               



                      See Vigue v. State, 987 P.2d 204, 210-11 (Alaska App. 1999);Millman v. State , 841  


P.2d 190, 195 (Alaska App. 1992).  

                                                                                                                                     -  10 -                                                                                                                                   2520

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


          Miller's objections to the pre-sentence report  


                    During the  sentencing proceedings  in  this  case,  Miller  took  issue  with  


several of the assertions in the pre-sentence  report - assertions portraying him as a  


pedophile who had  sexually abused several boys.                                  These assertions were based on  


hearsay. Miller offered his own testimonial denials of these accusations, and some of the  


boys mentioned in the pre-sentence report likewise denied that any  sexual abuse had  


taken place.          The superior court nevertheless concluded that these accusations were  


sufficiently "verified" to be included in the pre-sentence report.  


                    In Nukapigak v. State, 562 P.2d 697, 701 (Alaska 1977), our supreme court  


held  that  sentencing judges  are  entitled  to  consider  hearsay  allegations  of  past  bad  


behavior,  provided  that  the  information  is  verified  and  the  defendant  is  given  the  


opportunity to deny it  or  present contrary evidence of his own.   The supreme court  


defined  "verified"  as  meaning "corroborated  or  substantiated  by  supporting data  or  


information".  Id.  at 701 n. 2.  


                    However, a sentencing judge is not allowed to rely on hearsay allegations  


if the defendant offers a testimonial denialof the allegations.  See, e.g., Garland v. State,  


172 P.3d 827, 829 (Alaska App. 2007); Evans v. State, 23 P.3d 650, 652 (Alaska App.  


2001); Hamilton v. State, 771 P.2d 1358, 1361-62 (Alaska App. 1989).  


                    In Miller's case, the State concedes that the superior court acted improperly  


in at least two instances by relying on hearsay allegations of misconduct after Miller had  


offered testimonial denials.  


                    Given the State's concession, we conclude that, rather than delving into the  


numerous challenges that Miller raises to the pre-sentence report, it is better to simply  


remand this matter to the superior court - so that the superior court  can reconsider  


Miller's various challenges to the contents of the report.  

                                                              -  11 -                                                         2520

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



                    We AFFIRM Miller's convictions.   We REVERSE the superior court's  


ruling on the number of surcharges to be imposed on Miller under AS 12.55.039; we  


direct the court to amend the judgement to impose one surcharge (a felony surcharge of  


$100).  And we direct the superior court to reconsider Miller's various challenges to the  


contents of the pre-sentence report.  


                    The superior court shall make its rulings regarding the pre-sentence report  


within 60 days after this opinion is issued.  


                    If Miller wishes to challenge the superior court's rulings on reconsideration,  


he should file a supplemental brief addressing these matters within 60 days after the  


superior court issues its rulings.  The State shall then have 30 days to file a responding  


supplemental brief.  (These time limits may be expanded for good cause.)  


                    If Miller does not challenge the superior court's rulings, he shall promptly  


notify this Court, and we will close this appeal.  

                                                             -  12 -                                                        2520

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