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Lanolan Anderson v State of Alaska (6/7/2019) ap-2646

Lanolan Anderson v State of Alaska (6/7/2019) ap-2646


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

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

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

                                                     303 K Street, Anchorage, Alaska  99501

                                                                     Fax:  (907) 264-0878

                                                         E-mail:  corrections @



                                                                                                        Court of Appeals No. A-12294  

                                                       Appellant,                                   Trial Court No. 3AN-09-05898 CR  


                                                                                                                         O P I N I O N  


                                                       Appellee.                                             No. 2646 - June 7, 2019  

                           Appeal   from  the  Superior  Court,  Third  Judicial  District,  


                           Anchorage, Jack W. Smith, Judge.  

                           Appearances: Krista Maciolek, Law Office of Krista Maciolek,  


                            Inc., Palmer, under contract with the Office of Public Advocacy,  


                           Anchorage,  for  the  Appellant.    Michal  Stryszak,  Assistant  

                           Attorney General, Office of Criminal Appeals, Anchorage, and  


                           Jahna Lindemuth, Attorney General, Juneau, for the Appellee.  


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



                           Judge WOLLENBERG.  

                            Lanolan Anderson was convicted of three counts of first-degree assault.                                                                                  

The superior court sentenced him to a composite term of 20 years to serve.                                                                     

                            On appeal, Anderson raises several claims. First, Anderson argues that the                                                                       

court erred in failing to suppress his clothing, which the police seized without a warrant.                                                                                         

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

Second, Anderson argues that the court erred in instructing the jury regarding a witness's  


unavailability.   Third, Anderson argues that the court erred in rejecting two of his  


proposed mitigating factors and by giving insufficient weight to a third mitigating factor.  


Finally, Anderson argues that the court improperly found that Anderson had two prior  


felony  convictions,  rather  than  one,  when  determining  the  applicable  presumptive  


sentencing range.  


                    For thereasonsexplained inthis decision,wereject Anderson'sclaims, and  


we affirm Anderson's convictions and his sentence.  


           Underlying facts and proceedings  


                    In May 2009, shortly before midnight, Anderson kicked in the front door  


of  a  residence  in  Anchorage,  and  he  and  two  accomplices  (all  three  armed  with  


handguns) entered the residence.  Once inside, Anderson's accomplices shot two of the  


occupants and pistol-whipped a third.  Anderson was also shot during this incident.  


                    All three occupants of the residence required medical treatment for their  


wounds, and two of them were taken to Providence Medical Center. Because Anderson  


was wounded, he contacted a friend, and this friend also took him to the emergency room  


at Providence.  


                    In response to the report of the shooting, Anchorage Police Officer Jean  


Mills went to Providence, where she expected to meet and interview the victims of the  


alleged home invasion.   Mills arrived at the hospital just as Anderson got out of his  


friend's vehicle, and Mills could see that Anderson was bleeding from a wound to his  


abdomen.  From this, Mills assumed that Anderson was one of the victims.  


                    Mills accompanied Anderson into the emergency room and stayed there as  


the hospital staff treated him.  Mills took photographs of Anderson as the medical staff  


worked on him, and she observed a gunshot wound to Anderson's left side when the staff  


                                                              - 2 -                                                          2646

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

cut off his clothing. Anderson at first confirmed that he had been at the residence where                                                                                                                                                                                                                                  

the home invasion occurred, but he later changed his story, telling Mills that he was in                                                                                                                                                                                                                                                   

a grocery store parking lot when he was shot.                                                                                                                                       

                                                    Another officer then informed Mills that Anderson was a possible suspect                                                                                                                                                                                          

in the home invasion.                                                                  After some further questioning, Mills seized all of the clothing                                                                                                                                                           

that the medical staff had removed from Anderson, including his shoes.                                                                                                                                                                                                                     

                                                    The police subsequently compared aphotograph                                                                                                                                               of thesoles of Anderson's                              

shoes   to   photographs   of   shoe   impressions   left   on   the   kicked-in   front   door   of   the  

residence, and they appeared to match.                                                                                                                       At trial, a witness from the crime laboratory                                                                                               

testified to the match between Anderson's shoes and the shoe impressions on the front                                                                                                                                                                                                                                           

door of the residence. Crime lab representatives also testified that there was a blood stain                                                                                                                                                                                                                                     

on one of the shoes and that one of the victims could not be excluded as a source of the                                                                                                                                                                                                                                               

DNA found in the stain.                                                                           

                                                    Anderson and his two accomplices were charged with numerous felonies,                                                                                                                                                                                        


including three counts of first-degree assault (one for each alleged victim).                                                                                                                                                                                                                                                    

                                                                                                                                                                                                                                                                                                  Prior to trial,  


Anderson filed a motion to suppress, arguing that the police unconstitutionally seized his  


clothing from the hospital emergency room.  Anderson asked the court to suppress his  


clothing, as well as photographs of the clothing and the forensic analysis comparing the  


soles of his shoes to shoeprints recovered from the crime scene.  


                                                    The parties agreed to forgo an evidentiary hearing and to have the court  


decide the motion based on Officer Mills's police report. Based on the police report, the  


superior court found that the seizure of Anderson's clothing was justified by the plain  


view exception to the warrant requirement.  

              1           AS 11.41.200(a)(1).  

                                                                                                                                                                -  3 -                                                                                                                                                            2646

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                                       Anderson and his co-defendants were tried together.                                                                                                           At trial, Anderson         

 argued that the alleged victims had actually assaulted him.                                                                                                  

                                        The jury found Anderson guilty of the three first-degree assaults, but the   

jury was unable to reach verdicts on the remaining counts, including counts of first-                                                                                                                                                         

 degree robbery and conspiracy to commit first-degree robbery.                                                                                                                               Ultimately, the State                            

 dismissed the remaining counts against Anderson, and his case proceeded to sentencing                                                                                                                                        

 on the three assault convictions. (The jury could not reach verdicts as to Anderson's co-                                                                                                                                                         

 defendants, and their cases were later resolved without a trial.)                                                                                                   

                                       At Anderson's sentencing, the superior court rejected Anderson's two                                                                                                                                      

 proposed mitigators - that he played a minor role in the offenses, and that his conduct                                                                                                                                              


 was the result of serious provocation from the victims.                                                                                                                                                                                         

                                                                                                                                                                    But the superior court did find  


 that one of the assaults qualified as among the least serious conduct within the definition  


 of the offense.                                                                                                                                                                                                           

                                               Anderson conceded one aggravating factor - that he had a history of  




 aggravated assaultive behavior. 


                                       Finally, over Anderson's objection, the superior court found that Anderson  


 had two prior felony convictions for purposes of determining the applicable presumptive  


 sentencing range.  Because the court found that Anderson was a third felony offender,  


 he was subject to a presumptive sentencing range of 15 to 20 years for each first-degree  



 assault conviction.                                        The court sentenced Anderson to a term of 15 years on each count.  


 The  court  imposed  some  of  this  time  consecutively,  giving  Anderson  a  composite  


 sentence of 20 years, with no time suspended.  

          2         AS 12.55.155(d)(2) and AS 12.55.155(d)(6), respectively.  

          3         AS 12.55.155(d)(9).  

          4         AS 12.55.155(c)(8).  

          5         Former AS 12.55.125(c)(4) (pre-2016 version).  

                                                                                                                        - 4 -                                                                                                                   2646

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                                                     Anderson now appeals.                                        

                            Why   we   affirm   the   superior   court's   denial   of  Anderson's   suppression  


                                                     Prior to trial, Anderson moved to suppress his clothing, arguing that the                                                                                                                                                                                                              

 State had no justification for seizing the clothing without a warrant.                                                                                                                                                                                                      The parties agreed                               

that the superior court could decide this motion based solely on Officer Mills's police                                                                                                                                                                                                                                         

report and the parties' briefing - that is, without holding an evidentiary hearing.                                                                                                                                                                                                                                                    

                                                     Based on the police report, the court concluded that the seizure of the                                                                                                                                                                                                               

evidence was lawful because the evidence was in plain view.                                                                                                                                                                                                  More specifically, the                                                        

court found that (1) Officer Mills was in a place where she was lawfully entitled to be;                                                                                                                                                                                                                                                    

(2)  the discovery of Anderson's clothing was inadvertent, since Anderson arrived at the                                                                                                                                                                                                                                                     

hospital while Mills was waiting for the victims of the home invasion; and (3) the                                                                                                                                                                                                                                                         


evidentiary relevance of the clothing was immediately apparent.                                                                                                                                                                                                        


                                                     Before we analyze the superior court's ruling, we must discuss the two  


meanings of the phrase "plain view."  


                                                     In his leading treatise on search and seizure law, Professor Wayne R.  


LaFave points out that the phrase "plain view" is actually used in two distinct Fourth  



Amendment contexts. 

             6             See Ahvakana v. State                                                                 , 283 P.3d 1284, 1288 (Alaska App. 2012) (citing Reeves v.   

State, 599 P.2d 727, 738 (Alaska 1979)) (noting the three requirements of the plain view                                                                                                                                                                                                         

doctrine under Alaska law).  

             7              1 Wayne R. LaFave, Search and Seizure  2.2(a), at 597-604 (5th ed. 2012).  

                                                                                                                                                                   -  5 -                                                                                                                                                               2646

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

                        The first context, known as the "plain view doctrine," originated in Justice                                           


Stewart's   plurality   opinion   in   Coolidge   v.   New   Hampshire.                                                                       

                                                                                                                    This  doctrine  "refers  


exclusively to the legal justification . . . for the seizure of evidence which has not been  


particularly described in a warrant and which is inadvertently spotted in the course of a  


constitutional search already in progress or in the course of an otherwise justifiable  



intrusion into a constitutionally protected area." 


                        But courts also use the phrase "plain view" in a second context: to describe  


the situation "in which there has been no Fourth Amendment search at all," and where  


"an observation is made by a police officer without a prior physical intrusion into a  



constitutionally protected area."                             In this second context, where the observation of the  


evidence is not the result of a Fourth Amendment intrusion, "the observation is lawful  


without the necessity of establishing either pre-existing probable cause or the existence  



of a search warrant or one of the traditional exceptions to the warrant requirement." 


                        As Professor LaFave emphasizes, this second meaning of "plain view"  


"involves no intrusion covered by the Fourth Amendment [and] need not meet the three  

      8     Coolidge v. New Hampshire, 403 U.S. 443, 465-71 (1971).  

      9     Scales v. State, 284 A.2d 45, 47 n.1 (Md. App. 1971); see also State v. Spietz                                                       , 531  

P.2d 521, 524 n.11 (Alaska 1975) (recognizing that "the formal 'Plain View' Doctrine, as  


announced in  Coolidge, is exclusively a post-intrusion phenomenon") (quoting Brown v.  

State, 292 A.2d 762, 774 (Md. App. 1972)).   

      10    LaFave, Search and Seizure  2.2(a), at 599.  

      11    Id. at 600; see also Spietz, 531 P.2d at 524 n.11 (noting that the "Plain View" Doctrine   


"does not contemplate the non-intrusion visual observation, such as where evidence is in  

'open  view'  and  therefore  seizable  in  a  'constitutionally non-protected                                                area'")  (quoting  

Brown, 292 A.2d at 774).  

                                                                         -  6 -                                                                   2646

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


requirements   set   out   in   the   Coolidge   plurality   opinion."                                          For   this   reason,   courts  

sometimes describe this second context as "open view" rather than "plain view," to avoid                                                         

any ambiguity.             13  


                        When Anderson litigated his suppression motion in the trial court, the State  


relied on the Coolidge plain view doctrine to justify the seizure of Anderson's clothing.  


But Anderson argued that the Coolidge plain view doctrine did not apply to his case.  


                        Anderson took the position that Officer Mills was lawfully in his hospital  


room, and thus the seizure of Anderson's clothing was not the result of a police intrusion  


into a constitutionally protected space.  Rather, Anderson contended, the only Fourth  


Amendment violation that the police committed was the seizure of his clothing.  


                        In other words, Anderson essentially argued that his case fell within the  


second category of cases described by Professor LaFave - situations where the police,  


acting without a warrant, seize evidence that is in open view.  

      12    LaFave, Search and Seizure   2.2(a), at 601; see also McGee v. State, 614 P.2d 800,   

806 n.12 (Alaska 1980) ("[I]n non-search situations . . . , the requirement that discovery [of   

the evidence seized] be inadvertent is inapplicable.  The inadvertent discovery requirement   

assures that police will not intentionally expand the permissible scope of an otherwise lawful                            

search.  Where there is no search, there is, a fortiori, no danger that the police will exceed     

their permissible limits.").  

      13    See LaFave, Search and Seizure  2.2(a), at 599 (noting that this type of plain view  


is perhaps "deserving of a different label so as to avoid confusion of it with that discussed  


in  Coolidge"); State v. Kaaheena, 575 P.2d 462, 466 (Haw. 1978) (distinguishing "[t]he  

'open view' doctrine" from the "visually similar, but legally distinct, 'plain view' doctrine");  


Scales, 284 A.2d at 47 n.1 (stating that "[n]eedless confusion is frequently engendered by the  


employment in many opinions of the same phrase - 'in plain view' - to describe two  


visually similar but legally distinct situations[,]" and that it would be preferable to use "some  


alternative phraseology such as 'clearly visible,' 'readily observable,' 'open to public gaze,'  



                                                                         -  7 -                                                                   2646

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

                                     "Open view" seizures are not necessarily lawful.                                                                                           While there may have                             

been no unconstitutional                                              search, the State must still establish that the                                                                                  seizure   of the   

evidence was justified.                                          It is true that the seizure of an article that is in open view does                                                                               

not involve any invasion of privacy, but the seizure does invade the owner's possessory                                                                                                                          



interest in the item.                                         As Professor LaFave explains, "the seizure itself constitutes an  



interference with 'effects' protected by the Fourth Amendment."                                                                                                                        Thus, in the absence  


of a search warrant, "some recognized ground for [a] warrantless seizure . . . must be  



                                     Here, as part of the superior court's ruling on Anderson's suppression  


motion,  the  court  found  that  when  Officer  Mills  seized  Anderson's  clothing,  the  


evidentiary relevance of this clothing was "immediately apparent."  In this context, the  


phrase "immediately apparent" refers to situations where there is probable cause to  



believe that the object is evidence of criminal activity.                                                                                                   Thus, when Anderson and the  

          14      Horton v. California, 496 U.S. 128, 133-34 (1990).  

          15       LaFave, Search and Seizure  2.2(a), at 604.  

          16      Id. ; see also Soldal v. Cook County                                                      , 506 U.S. 56, 66 (1992) (holding that, "the absence  

of a privacy interest notwithstanding, '[a] seizure of the article . . . would obviously invade                                                                                                                               

the owner's possessory interest'" and implicate the Fourth Amendment) (quoting                                                                                                                                            Horton,  

496 U.S. at 134);  Sheffield v. United States, 111 A.3d 611, 619 (D.C. 2015) ("[T]he Fourth  

Amendment protects against unreasonable seizures of property in which the individual has                                                                                

a possessory interest, even if a privacy or liberty interest is not at issue.");                                                                                                              Jones v. State , 648  

So.2d 669, 675 (Fla. 1994) ("[E]ven if we were to find that Jones' privacy interests were in                                                                                                        

no way compromised, there clearly was a meaningful interference with his constitutionally     

protected possessory rights when his effects were seized without a warrant.").   

          17       United States v. Hamie, 165 F.3d 80, 83 (1st Cir. 1999); see also Arizona v. Hicks,  


480 U.S. 321, 326 (1987) (holding that the police must have probable cause to believe an  

item is evidence of a crime or contraband when seizing the item pursuant to the "plain view"  


doctrine); United States v. Davis, 690 F.3d 226, 237 (4th Cir. 2012) (collecting cases stating  


                                                                                                                 -  8 -                                                                                                            2646

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

 State    litigated   whether    the    evidentiary    relevance    of    Anderson's    clothing    was  

"immediately apparent," they effectively litigated whether the police had probable cause                                                                                                                                                                                                                                                                                                             

to believe that Anderson's clothing was evidence of a crime.                                                                                                                                                                                                                                                  And when the superior                                                    

court found that the relevance of Anderson's clothing was "immediately apparent" to                                                                                                                                                                                                                                                                                                                                  

Officer Mills, the court in essence found that Mills had probable cause to believe that the                                                                                                                                                                                                                                                                                                                      

clothing was evidence of the home invasion and shootings.                                                                                                                                                                                 

                                                                Based on the record before us, we uphold the superior court's finding of                                                                                                                                                                                                                                                                             

probable cause.                                                              Indeed, the record shows that Mills had probable cause to believe that                                                                                                                                                                                                                                                          

Anderson's clothing constituted evidence of a crime even before she and Anderson                                                                                                                                                                                                                                                                                              

entered the hospital.                                                                               

                                                                Mills first saw Anderson's clothing while she was waiting for the victims                                                                                                                                                                                                                                                   

of the shooting to arrive at the hospital.                                                                                                                                                    As Anderson exited his friend's vehicle, Mills                                                                                                                                                          

 saw that Anderson was wounded in the abdomen and that he was bleeding through his                                                                                                                                                                                                                                                                                                                               

clothing. At                                                that time, Mills mistakenly believed that Anderson was a victimof                                                                                                                                                                                                                                                      the home  

invasion. But regardless of whether Anderson was a victim or a suspect, the evidentiary                                                                                                                                                                                                                                                                                  

relevance of his blood-stained clothing was immediately apparent.                                                                                                                                                                                                                                                                 

                                                                 (Mills understandably did not seize Anderson's clothing until after he was                                                                                                                                                                                                                                                                  

being treated in the hospital.                                                                                                           And by then, Mills believed that Anderson was a suspect.)                                                                                                                                                                             

                                                                Because the police had probable cause to believe that Anderson's clothing                                                                                                                                                                                                                                               

was evidence of criminal activity, the open view seizure of Anderson's clothing was                                                                                                                                                                                                                                                                                                                        

lawful.   As the United States Supreme Court has said, it is "well settled" that the seizure                                                                                                                                                                                                                                                                                                 

                 17              (...continued)  

that  "an  item need  not  itself  be  contraband  before  it  has  an  'incriminating  nature,'  but  


instead, an item need only be evidence of a crime"); McGee , 614 P.2d at 806 ("The Fourth  


Amendment . . . requires that before seizing an item in plain view, the police must have  


probable cause to believe that the item seized is a fruit, instrumentality or evidence of a  



                                                                                                                                                                                                     -  9 -                                                                                                                                                                                                2646

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

 of   property   in   open   view   "involves   no   invasion   of   privacy   and  is   presumptively  


reasonable [if] there is probable cause to associate the property with criminal activity."                                                                                  


In other words, probable cause to believe that an object is evidence of a crime is a  


recognized ground for a warrantless seizure, as long as seizing the object does not  




require any additional Fourth Amendment intrusion. 


                           Other courts have upheld the warrantless seizure of a suspect's clothing  



under similar circumstances. 

       18    Payton v. New York, 445 U.S. 573, 586-87 (1980);                                              see also Texas v. Brown, 460 U.S.  

 730, 748 (1983) (Stevens, J., concurring) ("[I]f an officer has probable cause to believe that   

 a publicly situated item is associated with criminal activity, the interest in possession is       

 outweighed by the risk that such an item might disappear or be put to its intended use before     

 a warrant could be obtained.  The officer may therefore seize it without a warrant.");                                                                      Brown  

v. State, 292 A.2d 762, 774 (Md. App. 1972) (noting that the seizure of evidence when there   

has been no prior intrusion into a constitutionally-protected zone is permissible without   

 further justification), cited in State v. Spietz, 531 P.2d 521, 524 n.11 (Alaska 1975) & id. at  

 525-26 (Erwin, J., concurring).  

       19    See State v. Ricks, 816 P.2d 125, 125 (Alaska 1991) (distinguishing between the  


justified  warrantless  seizure  of  a  jacket  when  police  had  probable  cause  to  believe  it  


 contained contraband and the subsequent search of the jacket, for which the police needed  

 a warrant); cf. Moore v. State, 372 P.3d 922, 926 (Alaska App. 2016) (noting that "[w]hen  

the police have probable cause to believe that an article of luggage contains evidence of a  


 crime, and when there are no exigent circumstances authorizing an immediate warrantless  

 search, the police are authorized to seize the luggage (but not search it) and to carry the  


luggage away for safe-keeping while they apply for a search warrant").  


       20     Compare Davis, 690 F.3d at 233-38 (upholding the warrantless seizure of clothing  


 from the hospital when it was undisputed that the officer was lawfully present in the hospital  


room and had lawful access to the clothing, and it was apparent that the patient had been shot  


in the leg and that his clothing was beneath his bed); Chavis v. Wainwright, 488 F.2d 1077,  

 1078 (5th Cir. 1973) (upholding the seizure of clothing from the foot of the stretcher at the  


hospital);  Sheffield,  111  A.3d  at  618-21  (upholding  the  seizure  of  clothing  from  the  


 defendant's  hospital  room);  People  v.  Miller,  311  N.E.2d  179,  180  (Ill.  App.  1974)  



                                                                               -  10 -                                                                           2646

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

                            On appeal, Anderson argues a different Fourth Amendment theory for the                                                                            

suppression of his clothing. He now contends that it was unlawful for the police to enter                                                                                 

his hospital room. Thus, Anderson argues, his case falls within the                                                                    first     category of plain        

view cases described by Professor LaFave - cases where the                                                                              Coolidge   plain view   

doctrine   applies   because   the   discovery   of   the   evidence   was   preceded   by   a   Fourth  

Amendment  search.   

                            But   as   we   have   explained,   when   Anderson's   suppression   motion   was  

litigated   in   the   trial   court,   Anderson   did   not   argue   that   the   hospital   room   was  a  

constitutionally protected space, nor did he argue that the police entered that space                                                                                   

       20     (...continued)  

(upholding the seizure of burned clothing remnants that the officer saw being removed at the  


hospital from the defendant, who was suspected of arson); Floyd v. State, 330 A.2d 677, 679  


(Md. App. 1975) (holding that the police could validly seize, as evidence of a crime, bloody  


clothing cut from the defendant's body prior to his treatment for gunshot wounds), with  


People v. Jordan, 468 N.W.2d 294, 299-300 (Mich. App. 1991) (holding that the seizure of  

a defendant's clothing from the hospital where he was undergoing surgerywas impermissible  


because  the  clothing  was  "neither  obviously  incriminating  or  contraband");  People  v.  


Sanders, 47 N.E.3d 770, 777-78 (N.Y. 2016) (holding that the seizure of the defendant's  


clothing from the hospital was not supported by probable cause; the defendant, who had been  


shot, was dressed in different clothing by the time the officer arrived, and there was no  


evidence that the officer knew that the defendant's wounds were located in an area of the  


body that would be covered by clothing).  

              See also  3 Wayne R. LaFave, Search and Seizure   5.5(c), at 321 (5th ed. 2012)  


(noting that "a plain view seizure of personal effects of evidentiary value may also occur, for  


example, when those effects are viewed on or near the defendant's person rather than within  

premises or a vehicle in which he has a privacy interest, as where clothing of an injured  


person at a hospital is seized because it constitutes evidence of a crime committed on or by  


that person").  

                                                                                    -  11 -                                                                               2646

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

unlawfully.  Under our supreme court's decision in  Moreau v. State, Anderson cannot  


use his appeal to raise new theories for suppression of the evidence.                                                  


                      For these reasons, we affirm the superior court's denial of Anderson's  


suppression motion.  


           Anderson's claim regarding Jury Instruction No. 9B  


                      At trial, outside the presence of the jury, one of the alleged victims invoked  


his Fifth Amendment right against self-incrimination.  The State declined to grant this  


witness immunity, and thesuperior court ruled that thewitness was unavailable to testify.  


Over Anderson's objection, the court later instructed the jury that this witness was  


unavailable  to  testify  and  that  the  jury  should  not  speculate  on  the  reason  for  his  


unavailability, or speculate as to what he would have said had he testified.  


                      On appeal, Anderson argues that the court's instruction was improper. But  


Anderson does not meaningfully explain how this instruction was erroneous, nor does  


he explain how the error, if any, prejudiced him.  


                      Alaska Evidence Rule 512(a) declares that a claim of privilege is not a  


"proper subject of comment by judge or counsel," and that no inference may be drawn  


fromtheexercise of an evidentiary privilege. In addition, Evidence Rule512(c)provides  


that "[u]pon request, any party against whom the jury might draw an adverse inference  


from a claim of privilege is entitled to an instruction that no inference may be drawn  


therefrom."  Thus, it appears that, to the extent the jury might have drawn an adverse  

      21   Moreau v. State , 588 P.2d 275, 280 (Alaska 1978).  

                                                                    -  12 -                                                               2646

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

inference from the witness's claim of privilege, the State was entitled to this instruction,                                        


 even over Anderson's objection.                               


                        In an unpublished opinion, Hesch v. State, we noted that there is a split  


among jurisdictions as to whether a neutralizing instruction is required when a witness  


invokes  a privilege outside the presence of the jury and, as a result, the jurors are  



unaware that the privilege has been asserted.                                    In Hesch, we declined to resolve whether  


Alaska Evidence Rule 512(c) entitles a party to the instruction even when the privilege  


is invoked outside the presence of the jury because, given the split in authority, the  



judge's failure to give such an instruction did not constitute plain error. 


                        In this case, we likewise conclude that we need not decide the proper  


interpretation of Rule 512, for two reasons.  


                        First, in his briefing, Anderson does not address - or even mention -  


Evidence Rule 512, even though this rule was discussed when the parties addressed this  


issue in the trial court.  We therefore conclude that Anderson has inadequately briefed  



this claim of error. 


                        Second, Anderson has not identified any actual prejudice that he suffered  


 from  this  instruction,  beyond  the  inability  to  argue  the  type  of  adverse  inference  


precluded by Rule 512.   We also note that the court separately  instructed the jury  

      22    See Commentary to Alaska Evid. R. 512(c) ("Whether an instruction shall be given  

is left to the sound judgment of counsel for the party against whom the adverse inference may  


be drawn.  The instruction is a matter of right, if requested.").  

      23    See Hesch v. State, 2010 WL 1838597, *3 (Alaska App. May 5, 2010) (unpublished).  


      24    Id. at *4.  

      25    See Berezyuk v. State, 282 P.3d 386, 399 (Alaska App. 2012) (holding that when an  


opening brief "merely mentions a claim, with no substantive argument of the issue, and with  


no citation to pertinent legal authority, the claim will be deemed waived").  

                                                                       -  13 -                                                                 2646

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

(without objection) that it could only consider testimony and exhibits that were actually                                                                                                             

admitted as evidence.                                   

                                 Accordingly, we reject Anderson's challenge to Instruction No. 9B.                                                                                                

                 The proposed mitigators that the superior court rejected                                                                  

                                 At sentencing, Anderson asked the superior court to find either that he                                                                                                           

played a minor role in the assaults or, in the alternative, that he committed the three                                                                                                                     


assaults because of serious provocation from the victims.                                                                                                                                            

                                                                                                                                                     The superior court rejected  


both of these proposed statutory mitigators.  


                                  On appeal, Anderson points out that the jury was unable to reach verdicts  


on the charges of first-degree robbery and conspiracy to commit first-degree robbery.  


And he notes that his trial attorney argued in closing that there was no robbery or  


conspiracy, but in fact the "purported robbery victims assaulted [Anderson]." Fromthis,  


Anderson cursorily claims that the superior court could have found either mitigator and  


that the court erred in failing to do so.  


                                  ButAnderson fails to addressthesuperiorcourt's findings, let aloneexplain  


why these findings are erroneous.   The superior court found that "[Anderson's] role  


wasn't minor because, but for the planning, but for the recruiting, but for the kicking in  


the door, but for three people with weapons being present in this residence, none of the  


assaults would have occurred." The superior court then emphasized that Anderson "was  


involved in the planning.  He kicked in the door.  He was clearly present[;] the victim's  

        26       AS 12.55.155(d)(2) and AS 12.55.155(d)(6), respectively.  

                                                                                                     -  14 -                                                                                                  2646

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blood was on his sweatshirt.                       So, but for his conduct, there wouldn't have been any                                   



                     The superior court therefore rejected the proposed "minor role" mitigator.  


                      Regarding the "serious provocation" mitigator, the court found that the  


victims' efforts to defend themselves when their home was invaded by three armed  


individuals did not constitute "provocation" mitigating Anderson's conduct.  


                      Anderson  has not shown  that the superior  court's factual findings are  



clearly erroneous.                Based on these facts, we conclude that Anderson failed to prove his  



proposed mitigators by clear and convincing evidence. 


           The proposed mitigator that the superior court found  


                      Anderson proposed an additional mitigating factor as to one of his assault  


convictions.  The superior found this mitigator - concluding that the pistol-whipping  


of one of the victims was among the least serious conduct included within the definition  




of first-degree assault. 

      27   This sweatshirt was not seized from the hospital but rather from the residence of the                                             

woman who drove Anderson to the hospital.  

      28   See Michael v. State, 115 P.3d 517, 519 (Alaska 2005) (holding that the existence or  

non-existence of a mitigating factor is a mixed question of fact and law; any factual findings  


regarding the nature of the defendant's conduct are reviewed for clear error and whether  


those facts establish the mitigator is a legal question reviewed de novo).  

      29   See  AS  12.55.155(f)(1)  (mitigating  factors  must  be  established  by  clear  and  


convincing evidence).  

      30   AS 12.55.155(d)(9).  

                                                                    -  15 -                                                               2646

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                           On appeal, Anderson argues conclusorily that the superior court "declined                                                      

to give [this mitigator] adequate weight" and that Anderson should be resentenced.                                                                                    We  


conclude that Anderson's briefing is inadequate to preserve this claim of error.                                                                                    


              The superior court did not err when it found that Anderson had two prior  


            felony convictions  


                           The maximum sentence for first-degree assault, a class A felony, is 20  



                At the time Anderson committed his offenses, the presumptive sentencing range  


for a second felony offender was 10 to 14 years, and the presumptive sentencing range  



for a third felony offender was 15 to 20 years.                                                      Anderson argues on appeal that the  


superior court erred when it found he had two prior felony convictions and was therefore  


a third felony offender.  


                           The calculation of the number of a defendant's prior felony convictions for  


purposes of presumptive sentencing is governed by AS 12.55.145.  Under subsection  


(a)(1)(C)  of  that  statute,  two  or  more  felony  convictions  "arising  out  of  a  single,  


continuous criminal episode" constitute a single conviction if "there was no substantial  


change in the nature of the criminal objective" during that episode, and if the defendant  


received concurrent sentences for the crimes.  


                           At the time Anderson committed the offenses in this case, he had been  


previously convicted (in a single case) of two felonies in the state of Washington:  

       31    See Petersen v. Mutual Life Ins. Co. of New York, 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 appeal.").  

       32    AS 12.55.125(c).  First-degree assault is a class A felony.  AS 11.41.200(b).  

       33    Former   AS   12.55.125(c)(3)   (2009)   and   former   AS   12.55.125(c)(4)   (2009),  


                                                                                 -  16 -                                                                            2646

----------------------- Page 17-----------------------

manslaughter and second-degree assault, involving two separate victims. In the superior  


court, Anderson argued that these twoprior convictions constituteda"singleconviction"  


for purposes of AS 12.55.145(a)(1)(C).  


                    Anderson asserted that both convictions arose out of a single "melee" and  


that they should therefore be treated as one prior felony conviction for purposes of  


presumptive sentencing.  Under AS 12.55.145(d), Anderson had the burden of proving  


this assertion by clear and convincing evidence.  


                    The only evidence on this issue was a Washington State police officer's  


affidavit describing the offenses. This affidavit was part of the presentence report in the  


present case.  


                    This affidavit showed that both of Anderson's prior felonies occurred close  


in time and were related to each other. During an altercation between Anderson's friend  


and another man, Anderson shot and killed the other man.  Then, when a friend of the  


gunshot victim intervened, Anderson pistol-whipped this person.   Anderson pleaded  


guilty to manslaughter for the shooting and to felony assault for the pistol-whipping. He  


received concurrent sentences.  


                    The superior court found that these two prior felony convictions were  


separate  for  purposes  of  presumptive  sentencing.                                The  court  acknowledged  that  


Anderson  received  concurrent  sentences  in  the  Washington  case,  but  the  court  


nonetheless found that, although the convictions likely arose from a single, continuous  


course of conduct, there was a substantial change in the nature of Anderson's criminal  


objective when he pistol-whipped the second man. That is, the superior court found that  


Anderson shot the first victim, but then pistol-whipped the second victim only when that  


person intervened.  The superior court found that the legislature did not intend for this  


type of circumstance to be treated as a single conviction with a single criminal objective.  


                                                              -  17 -                                                         2646

----------------------- Page 18-----------------------

                                           On reconsideration, the court made further findings.                                                                                                                 The court found that                                   

Anderson's initial objective was to "assault the decedent," but that Anderson did not                                                                                                                                                                                  

appear to contemplate or even consider assaulting the second person until that person                                                                                                                                                                        

lunged at him, and Anderson tried to "fend" him off.                                                                                                                                The court therefore rejected                                        

Anderson's characterization of the incident as a continuing "melee," finding that it                                                                                                                                                                                         

involved "a new victim, a new purpose, and a new act," and that Anderson had put forth                                                                                                                                                                             

no evidence to contradict these findings.                                                                                         

                                          The superior court contrasted Anderson's case with an example given in                                                                                                                                                            

the   legislative   commentary   to   AS   12.55.145.     In   the   commentary,   the   legislature  

explained that "the breaking and entering of a building with the intent to commit theft"                                                                                                                                                                        

(burglary) and the resulting "taking of property in the building" (theft) would constitute                                                                                                                                                          



a single prior conviction for presumptive sentencing purposes.                                                                                                                                                 The legislature noted  


that, under those circumstances, the crimes shared a single criminal objective: to obtain  



property.                            In contrast, the court in this case noted that the original criminal objective of  


Anderson's prior shooting did not extend to the second assault.  


                                           On appeal, Anderson renews his claim that his prior convictions were part  


of a "street brawl" with a singular criminal objective to engage in assaultive behavior.  


But given the evidence presented at sentencing, the trial court did not clearly err in  


finding that Anderson had failed to prove that he had a singular criminal objective.  


                                          We note that under AS 12.55.127(c)(2), when a defendant is convicted of  


two or more counts of homicide in any degree, or of assault in any degree, the defendant  


must  receive  some  amount  of  consecutive  term  of  imprisonment  for  each  count.  

           34        Commentary to Alaska's Revised Criminal Code, 1978 Senate Journal Supp. No. 47   

(June 12), at 156-59.  

           35        Id.  


                                                                                                                                -  18 -                                                                                                                             2646

----------------------- Page 19-----------------------

Consequently, if an Alaskan defendant were to be convicted of the same two felonies for                                                                                                                                                                                                                                                 

which Anderson was convicted in the State of Washington, those two felonies could                                                                                                                                                                                                                                           

never qualify as a single prior felony offense under AS 12.55.145(a)(1)(C).                                                                                                                                               

                                                    We note, too, that the Washington Supreme Court has held that crimes                                                                                                                                                                                                

involving separate victims do not qualify as the "same criminal conduct" (and thus, do                                                                                                                                                                                                                                                   

not constitute a single conviction) for purposes of calculating a defendant's applicable                                                                                                                                                                                                                  

sentencing range.                                                    36  


                                                    Accordingly, we affirm the superior court's ruling that Anderson was a  


third felony offender.  



                                                    The judgment of the superior court is AFFIRMED.  

             36           State v. Dunaway, 743 P.2d 1237, 1241 (Wash. 1987) (en banc).                                                                                                                                                                                      The Dunaway  rule  

has now been statutorily codified.                                                                                                     See  RCW 9.94A.589(1)(a);                                                                                    State v. Yusuf                                        , 2018 WL   

 1168724, at *7 (Wash. App. Mar. 5, 2018) (unpublished) (Spearman, J., concurring).  

                                                                                                                                                              -  19 -                                                                                                                                                             2646

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