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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ROD A. SIVERTSEN, )
) Court of Appeals No. A-6552
Appellant, ) Trial Court No. 1JU-S96-1165CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1600 - August 21, 1988]
______________________________)
Appeal from the Superior Court, First Judicial
District, Juneau, Larry R. Weeks, Judge.
Appearances: Julia D. Moudy, Assistant Public
Defender, Juneau, and Barbara K. Brink, Public Defender, Anchorage,
for Appellant. Cynthia L. Herren, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
STEWART, Judge.
Rod A. Sivertsen appeals his convictions for second-degree
burglary [Fn. 1] and second-degree theft. [Fn. 2] He argues that
Superior Court Judge Larry R. Weeks committed various errors during
trial when he admitted certain evidence and denied Sivertsen's
motions for a mistrial and a judgment of acquittal on one count.
But we conclude that Judge Weeks did not abuse his discretion and
that he did not err by denying the acquittal motion. Therefore, we
affirm Sivertsen's conviction. However, we find that we must vacate
Sivertsen's sentence.
Facts and proceedings
On July 31, 1996, Sergeant Chuck Perry of the Ketchikan
Police Department called the Juneau Police Department and spoke to
Officer Ben Cornell. Perry told Cornell that Sivertsen was flying
to Juneau that evening and that he was a suspected burglar. A
photograph of Sivertsen was faxed to the Juneau police.
Sivertsen arrived as expected. A contingent of Juneau
police and a couple of members of the Juneau Citizens Patrol tailed
him from the airport to the downtown area and attempted to maintain
surveillance, but occasionally lost track of him. About 2:10 A.M.
on August 1, 1996, Officers Wrightson and VanSickle saw Sivertsen
in a second-story window of the Merchant's Wharf, a building
subdivided into multiple offices and stores. Sivertsen shattered
a glass door but could not get out. He broke out a nearby window
and stepped out of the building with a hammer in his hand. He was
arrested. The police found over six hundred dollars in cash and a
putty knife in his possession.
Inside Merchant's Wharf, the office of Cruise Line Agency
of Alaska had been forcibly entered. Six hundred dollars in cash
was missing from the office. Donald Habeger, Cruise Line's
operations manager, told the police that the hammer and putty knife
came from the Cruise Line office.
Sivertsen was indicted for second-degree burglary of the
Cruise Line office, second-degree burglary of Merchant's Wharf,
second-degree theft of the cash from Cruise Line, and second-degree
criminal mischief for breaking the glass door and window. The jury
found Sivertsen guilty of both burglary counts and the theft count
but could not agree on the criminal mischief charge. Prior to
sentencing, Judge Weeks merged the burglary counts, and the state
dismissed the criminal mischief charge.
At trial, Sivertsen sought to exclude reference to the
warning received by the Juneau police that Sivertsen was heading
their way. He argued that the evidence was irrelevant to the
charges, and, under Alaska Rule of Evidence 403, was more
prejudicial than probative. Judge Weeks permitted testimony about
the phone call to explain the officers' interest in Sivertsen, but
did not allow testimony detailing the basis for the concern by
Ketchikan police that Sivertsen was an active burglar. Judge Weeks
provided a limiting instruction to the jury on the uses they could
make of that evidence: "To the extent that the call from Ketchikan
was made, you're not to consider that as evidence that the defendant
did what he was charged with doing. It's to explain to you why the
police did what they did and is offered for no other reason."
On appeal, Sivertsen argues that the limiting instruction
did not cure the violation of Alaska Evidence Rule 404(b).
Sivertsen assumes that the evidence of the warning phone call is
evidence of a prior bad act. But we analyze that evidence
differently. The evidence actually admitted was not direct evidence
of a prior bad act by Sivertsen but was evidence from which a fact-
finder could infer that Sivertsen was an individual who had engaged
in a prior bad act. Judge Weeks foreclosed impermissible uses of
that evidence by the jury with his limiting instruction. His
instruction narrowed the jury's consideration of the phone-call
evidence to "explain why the police did what they did and is offered
for no other reason." A jury is presumed to follow a court's
limiting instruction on the purpose for which they can consider
evidence. [Fn. 3]
Given the strict limitations placed on the jury's use of
the phone call evidence, we conclude that Judge Weeks did not abuse
his discretion by limiting the jury's use of the warning and
admitting the evidence. [Fn. 4]
Even if the admission of that evidence was error, we
conclude the error was harmless because the evidence did not
appreciably affect the jury's verdict. [Fn. 5] The evidence that
Sivertsen committed the offenses was strong. He was caught in the
act of breaking out of Merchant's Wharf carrying tools that came
from the Cruise Line office and possessing cash consistent with the
cash missing from the Cruise Line office.
Sivertsen's next point concerns Habeger's testimony
identifying the hammer and the putty knife. Following that
testimony, Sivertsen claimed a discovery violation and moved for a
mistrial. Although he conceded Habeger was identified in the
police reports, he argued that the absence of Habeger's
identification of the hammer and the putty knife in the reports
entitled him to a mistrial. Counsel for Sivertsen did not interview
Habeger prior to trial.
The prosecutor told the court he did not realize there was
no reference in the police reports to Habeger's identification of
the tools. He said that he learned of the identification of the
tools the week before trial because he interviewed Habeger as part
of his trial preparation. Judge Weeks denied the motion for a
mistrial. Sivertsen then moved to exclude the testimony that had
been received, or in the alternative, for a one-day continuance.
Judge Weeks denied the motion to exclude the evidence and indicated
he would take the motion for a continuance under advisement. The
issue of a continuance did not come up again during trial.
On appeal, Sivertsen claims that this fact pattern
establishes a violation of Alaska Criminal Rule 16 and that Judge
Weeks should have granted his motion for a mistrial because of that
violation. We disagree with both assertions.
We do not understand Criminal Rule 16(b)(1)(i) to require
disclosure by the prosecutor of Habeger's oral statements made
during pre-trial preparation shortly before trial. We reach that
conclusion by analyzing three subsections of Criminal Rule 16(b)(1):
(b) Disclosure to the Accused.
(1) Information Within Possession or Control
of Prosecuting Attorney. (A) Except as is
otherwise provided ... , the prosecuting
attorney shall disclose the following informa-
tion within the prosecuting attorney's
possession or control to defense counsel ... :
(i) The names and addresses of persons
known by the government to have knowledge of
relevant facts and their written or recorded
statements or summaries of statements;
(ii) Any written or recorded statements
and summaries of statements and the substance
of any oral statements made by the accused;
(iii) Any written or recorded statements
and summaries of statements and the substance
of any oral statements made by a co-
defendant[.]
Each subsection requires disclosure of "written or recorded
statements and summaries of statements," but only subsections (ii)
and (iii) require disclosure of "the substance of any oral
statements." Sivertsen argues that failure to disclose Habeger's
oral identification of the hammer and putty knife was a violation
of Rule 16(b)(1). But we can not reach that conclusion after our
examination of the language of the rule.
Criminal Rule 16(b) was derived from the American Bar
Association (ABA) Standards for Criminal Justice, "Discovery and
Procedure Before Trial," Standard 2.1(a) (approved draft 1970).
That text provides:
2.1 Prosecutor's obligations.
(a) Except as is otherwise provided ... ,
the prosecuting attorney shall disclose to
defense counsel the following material and
information within his possession or control:
(i) the names and addresses of persons
whom the prosecuting attorney intends to call
as witnesses at the hearing or trial, together
with their relevant written or recorded state-
ments;
(ii) any written or recorded statements
and the substance of any oral statements made
by the accused, or made by a codefendant if the
trial is to be a joint one[.]
The ABA standard differs from Criminal Rule 16 in a few important
areas. First, the ABA standard requires a prosecutor to disclose
only the statements of "persons whom the prosecuting attorney
intends to call at ... trial." Our supreme court has rejected that
limitation. [Fn. 6] Second, the supreme court expanded the
prosecution's duty to require disclosure of all co-defendants'
statements. Third, the supreme court added "and summaries of
statements" to the ABA language "written or recorded statements."
But the supreme court retained the ABA's distinction
between the scope of disclosure required for statements of witnesses
and the scope required for statements of defendants and co-
defendants. The court followed the ABA standard by including the
phrase "and the substance of any oral statements" in sections
(b)(1)(ii) and (iii), but omitted this phrase from section (b)(1)(i)
which applied to statements made by witnesses such as Habeger.
Both the language of and the commentary to ABA Standard
2.1(a) specifically indicate that the term "statement" does not
include an unrecorded oral statement such as Habeger made to the
prosecutor. [Fn. 7]
We recognize that this interpretation of Criminal Rule
16(b)(1)(i) could be abused. But there is no indication here of bad
faith by the prosecutor. Although Habeger's statements identifying
the tools were not previously disclosed to Sivertsen, Sivertsen has
not identified anything in this record that demonstrates that the
prosecutor tried to circumvent the rule. Nor does this record
reflect any effort by the prosecution to discourage Habeger from
discussing the case with Sivertsen.
Even if the failure to disclose Habeger's identification
of the tools was a discovery violation, the defendant must show a
plausible way in which his defense could have been prejudiced by the
discovery violation for a mistrial to be warranted. [Fn. 8]
Although Sivertsen was apparently surprised by Habeger's discussion
of the tools, he did not explain how the evidence undermined his
case.
In the absence of a showing of prejudice, there is no
error in denying a motion for a mistrial based on a claimed
discovery violation. [Fn. 9] Habeger's identification of the
tools, while evidence that supported the prosecution's case, did not
undermine any defense announced by Sivertsen. In opening statement,
Sivertsen indicated that he was reserving his analysis of the facts
until closing argument. He urged the jury to keep an open mind on
the case and to remember the presumption of innocence. Thus this
case is unlike Bostic v. State. [Fn. 10] In Bostic, the prosecution
had committed an intentional discovery violation by not informing
the defense of an expert witness whom the prosecutor would call.
Since the testimony of the expert significantly undermined Bostic's
announced defense, the supreme court held that the prosecution bore
the burden of proof that the defendant was not prejudiced by the
intentional discovery violation. And if the prosecution failed to
meet that burden, the court held that a mistrial should be declared.
From our review of this record, we conclude that Judge
Weeks did not abuse his discretion when he denied Sivertsen's
mistrial motion. [Fn. 11]
Next we consider Sivertsen's argument that Judge Weeks
erroneously denied his motion for a judgment of acquittal on the
burglary count relating to Merchant's Wharf. Sivertsen maintains
that he was entitled to a judgment of acquittal because there was
no evidence that he forced his way into Merchant's Wharf. We
disagree. First, forced entry is not an essential element for
burglary. What the prosecution was required to prove here was that
Sivertsen entered or remained unlawfully in Merchant's Wharf. Our
review of the record shows that the jury was presented with
sufficient evidence for reasonable jurors to conclude that Sivertsen
had entered or remained unlawfully in Merchant's Wharf. [Fn. 12]
Second, Judge Weeks merged the two burglary counts for sentencing.
Even if Judge Weeks should have granted his motion for judgment of
acquittal on the Merchant's Wharf burglary count, Sivertsen has
suffered no harm because he does not argue that there was
insufficient evidence to support the conviction for the Cruise Line
burglary.
We now address Sivertsen's claim that the prosecutor's
final argument was erroneous. The prosecutor made the following
comments:
Now [I] have to prove that he did so with the
intent to commit a crime. The court read you the
instruction on what's called state of mind and I'm not
going to go over all the instructions. All I want you to
do is read the packet, apply the law. I'm not going to
read the whole intent state of mind instruction but state
of mind may be proven by circumstantial evidence.
(indiscernible) go on. There can be no eyewitness to the
state of mind with which acts are done or omitted, but
what a defendant does or fails to do may indicate the
defendant's state of mind.
The point is we don't have some way of
getting in somebody's head, but what we all do, we usually
are assumed to intend to do. I intended to hit the hammer
and hit the desk there. You can assume I intended to do
that, you saw me do it. He intended to burglarize Cruise
Line Agencies of Alaska, he kicked the door.
Sivertsen objected, claiming that those comments
impermissibly shifted the burden of proof under Sandstrom v.
Montana. [Fn. 13] The objection was overruled. He moved for a
mistrial. The motion was denied.
We conclude that the prosecutor's comments did not shift
the burden of proof. Those comments informed the jury that they
were permitted to infer Sivertsen's intent from his conduct. Also,
Judge Weeks gave an appropriate instruction that confirmed that the
jury was permitted to draw inferences from Sivertsen's conduct. [Fn.
14] We hold that the prosecutor's argument here, which mirrored
Judge Weeks' instruction, was not erroneous.
Following final argument, Sivertsen also moved for a
mistrial on the basis of the cumulative error of the court and the
prosecutor during trial. [Fn. 15] But the combined impact of
cumulative error, even if each individual error is harmless, must
be so prejudicial that Sivertsen must have been deprived of a fair
trial. In our examination of the record of Sivertsen's trial, we
do not find cumulative error. Therefore, Judge Weeks did not abuse
his discretion by denying that final mistrial motion.
Prior to sentencing, the state gave notice that Sivertsen
had a prior felony conviction in Ketchikan and two felony
convictions in Washington. Sivertsen admitted the Ketchikan
conviction, but denied the Washington convictions. The prosecution
was able to produce a certified copy of one of the Washington felony
convictions. Since he had two prior convictions for purposes of
presumptive sentencing, Sivertsen was subject to a three-year
presumptive term on the burglary count and on the theft count. [Fn.
16] Judge Weeks found that the statutory aggravating factor that
Sivertsen had a history of repeated violations of criminal laws
similar in nature to his convictions was proven. [Fn. 17]
Judge Weeks found that the only important sentencing
factor was isolation. He concluded that Sivertsen was a worst
offender. He sentenced Sivertsen to four years with one year
suspended on each count, with the counts running consecutively.
Thus Sivertsen received a composite six-year term. That term is
greater than the five-year maximum term for either offense. Because
Judge Weeks found that Sivertsen was a worst offender a sentence up
to the maximum term of five years is justifiable. [Fn. 18] But a
trial judge imposing a composite sentence greater than the maximum
sentence for the defendant's most serious offense must find that the
sentence is necessary to protect the public. [Fn. 19] Judge Weeks
did not make that finding. Therefore, we must vacate the sentence
and remand the case to the superior court for re-sentencing. If
Judge Weeks concludes that he must impose a composite sentence in
excess of five years to serve, he must find that the term is
required for the protection of the public.
Conclusion
We VACATE Sivertsen's sentence and REMAND to the superior
court for re-sentencing. In all other respects, the judgment is
AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.46.310(a).
Footnote 2:
AS 11.46.130(a)(1).
Footnote 3:
See State v. McDonald, 872 P.2d 627, 654-55 (Alaska App. 1994) (citing Whiteaker
v. State, 808 P.2d 270, 277 (Alaska App. 1991)).
Footnote 4:
See Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980).
Footnote 5:
See Love v. State, 457 P.2d 622, 629-31 (Alaska 1969).
Footnote 6:
See Howe v. State, 589 P.2d 421, 424 (Alaska 1979).
Footnote 7:
See II Standards for Criminal Justice, sec. 11.-2.1 and commentary at 62 (Approved
Draft 1970).
Footnote 8:
See Bostic v. State, 805 P.2d 344, 348 (Alaska 1991).
Footnote 9:
See Jurco v. State, 825 P.2d 909, 917 (Alaska App. 1992).
Footnote 10:
805 P.2d 344 (Alaska 1991).
Footnote 11:
See Roth v. State, 626 P.2d 583, 585 (Alaska App. 1981).
Footnote 12:
See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Deal v. State, 657 P.2d
404, 405 (Alaska App. 1983).
Footnote 13:
442 U.S. 510 (1979).
Footnote 14:
See Gipson v. State, 609 P.2d 1038, 1042 (Alaska 1980).
Footnote 15:
See Drumbarger v. State, 716 P.2d 6, 16 (Alaska App. 1986).
Footnote 16:
AS 12.55.125(e)(2).
Footnote 17:
AS 12.55.155(c)(21).
Footnote 18:
See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975).
Footnote 19:
See Mutschler v. State, 560 P.2d 377, 380-81 (Alaska 1977).
 In the Court of Appeals of the State of Alaska
Rod Sivertsen, )
) Court of Appeals No. A-06552
Appellant, )
v. ) Order
)
State of Alaska, )
)
Appellee. ) Date of Order: 8/21/98
)
Trial Court Case # 1JU-96-01165CR
Before: Coats, Chief Judge, Mannheimer and Stewart, Judges
On consideration of the appellant's motion to publish the
memorandum opinion and judgment No. 3846, issued on July 15, 1998,
IT IS ORDERED:
1. The motion to publish is GRANTED.
2. Memorandum Opinion and Judgment No. 3846, issued on July
15, 1998, is WITHDRAWN and Opinion No. 1600 is issued today in its
place.
Entered at the direction of the Court at Anchorage, Alaska, on
August 21, 1998.
Clerk of the Appellate Courts
Cheryl Jones, Deputy Clerk
cc: Court of Appeals Judges
Judge Larry Weeks
Central Staff Attorneys
Trial Court Appeals Division
Eric Johnson
OSPA
310 K Street #308
Anchorage AK 99501
Philip M. Pallenberg
Alaska Public Defender Agency
P.O.Box 110216
Juneau, AK 99803
