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Hosier v. State (3/17/00) ap-1669
Hosier v. State (3/17/00) ap-1669
NOTICE:
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
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Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DONALD R. HOSIER, )
) Court of Appeals No. A-689
Appellant, ) Trial Court No. 1KE-96-1255 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1669 - March 17, 2000]
)
Appeal from the Superior Court, First Judicial District,
Ketchikan, Michael A. Thompson, Judge.
Appearances: Donald R. Hosier, Anchorage, pro se. John A.
Scukanec, 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.
MANNHEIMER, Judge.
Donald R. Hosier appeals his convictions on several counts of second-
degree forgery and one count of second-degree theft.1 Hosier contends that the trial court
committed error by allowing the State to amend the indictment at trial to conform to the
evidence. Hosier also contends that he was prejudiced when the trial judge did not inform
him of a note received from the jury in the middle of trial. Finally, Hosier claims that the
trial court should not have allowed the State to play a tape recording of an interview
between Hosier and the police because this interview contained references to Hosier's
prior criminal acts. For the reasons explained here, we conclude that the amendment of
the indictment was not error, that Hosier was not prejudiced by the trial judge's failure
to inform him of the jury note, and that Hosier failed to preserve his objection to the
playing of the tape. We therefore affirm Hosier's convictions.
The amendment of the indictment
Hosier was convicted of forging Richard Dahl's name on several
checks written against Dahl's account at Key Bank in Ketchikan. Hosier's
indictment mistakenly identified the bank as "First Bank". At Hosier's trial,
Superior Court Judge Michael A. Thompson allowed the State to amend the
indictment to name the correct bank.
Hosier asserts that Judge Thompson should not have allowed the
State to amend the indictment in this fashion. He contends that the identity of the
bank was a material element of the charge against him, and thus the amendment
substantially prejudiced his rights to be informed of the charge and to have a grand
jury review the charge.2 Hosier is mistaken: the identity of the bank was not a
material element of the forgery charge.
As defined in AS 11.46.510(a), the crime of forgery is committed
when a person, acting with intent to defraud, either forges (i.e., falsely makes,
completes, or alters) a written instrument or, alternatively, possesses or circulates
a forged instrument.3 Here, the State's basic allegation was that Hosier, acting
with intent to defraud, wrote checks against a bank account when he had no
authority to write the checks or to draw funds from the account.
AS 11.46.990(10) states that when "intent to defraud" is an element
of an offense, an intent to defraud any person suffices to establish this element.
Thus, if Hosier intended to commit fraud by forging checks, it was irrelevant
whether Hosier intended to defraud the owner of the account, the bank that
maintained the account, the merchant who accepted the check as payment, or all
three.
There may be times, however, when the identity of the victim is
relevant to determining whether a defendant has committed forgery. To rebut a
charge of forgery, a defendant may assert that they were authorized (or reasonably
believed themselves authorized) to make or alter the written instrument as they did.
When this defense is raised, the identity of the purported victim may be crucial to
the jury's determination of whether the defendant was actually authorized to take
the actions alleged in the indictment. In such circumstances, the defendant's rights
might be substantially prejudiced if the trial judge allowed mid-trial amendment
of the indictment to name a different victim.
But generally, the defendant will have no greater claim of authority
to create or alter documents in the name of one victim as opposed to another. The
normal rule, therefore, is that when a forgery or theft indictment is amended at trial
to name a different victim, this amendment does not allege a different offense, and
the alteration of the indictment is not a "material" or "fatal" variance.4
The Alaska Supreme Court applied this rule in Price v. State.5 The
defendant in Price was accused of forgery. The indictment asserted that Price had
forged a woman's name as an endorsement to a check, but the indictment failed to
explicitly specify that the checking account belonged to this woman. The
indictment also failed to explicitly identify the bank at which this account was held.
6 At trial, the court allowed the State to cure these deficiencies by amending the
indictment to incorporate a copy of the front side of the forged check.7 On appeal,
Price asserted that the amended indictment fatally varied from the original
indictment. But the supreme court rejected this argument:
The original of the check referred to in the indictment was
introduced in evidence as part of the state's case in chief
without objection by [Price], so [he] then knew, prior to
putting on his defense, what the precise nature of the charge
against him was. In addition[,] the trial court ... offered to
give [Price] a reasonable time in which to prepare his defense
if he claimed that he was taken by surprise by the ...
amendment to the indictment. No such claim was made; a
continuance was not requested by [the] appellant.
. . .
The failure of the indictment to name the date, the amount and
the maker of the check, and the bank on which it was drawn,
was an "error in form" within the meaning of [Criminal Rule
7(e)]. The amendment ... does not charge an additional or
different offense from that charged by the indictment prior to
the amendment. And as we have already [indicated, the]
appellant has not shown that any of his substantial rights have
been prejudiced.
Price, 437 P.2d at 332-33.
In Hosier's case, the forged checks were
admitted into evidence at trial. Hosier does not claim that the
State failed to disclose this evidence to him before trial, nor
does he claim that he was taken by surprise by any aspect of
this evidence. Rather, Hosier insists only that the identity of
the bank was a material element of the offense, an allegation
that could not be changed unless the case was re-submitted to
the grand jury. We reject this contention. The identity of the
bank was not a material element of the forgery charge against
Hosier. And because Hosier has not claimed, much less
shown, that the change in the name of the bank prejudiced his
defense, the amendment of the indictment was proper under
Criminal Rule 7(e).
For the same reasons, we reject Hosier's claims
(1) that the jury should have been instructed that the identity
of the bank was a material element of the offense, and (2) that
he should have been granted an acquittal because the State's
proof concerning the identity of the bank varied from the
allegation in the indictment.
The jury note
On the second day of Hosier's trial, during the State's
case-in-chief, the jury sent a note to Judge Thompson, requesting
that he ask the prosecutor to speak more slowly and the defense
attorney to speak more loudly. Normally, a trial judge should notify
the parties of any communication from the jury, and this notification
should take place on the record. Judge Thompson failed to discuss
the jury note on record, but it is clear from the record that he did
convey the jury's requests to the attorneys. During the defense
cross-examination of a government witness, Hosier's attorney
remarked, "I'm supposed to speak up. Pardon me." In response to
this comment, Judge Thompson addressed the jurors: "I did relay
your note to Mr. West [the prosecutor] and Mr. Zelensky [the
defense attorney]."
Hosier contends that he was not present when Judge
Thompson notified the two attorneys of the jury's requests. The
State concedes that this is so. Both the supreme court and this court
have repeatedly held that it is constitutional error for a trial judge to
respond to jury questions without notifying the defendant.8
Although the jury note in Hosier's case did not directly involve the
merits of the litigation or the jury's duties in deciding the case, we
assume that Judge Thompson's failure to alert Hosier to the note was
constitutional error.
The next question is whether this error requires
reversal of Hosier's convictions. While Hosier may not have been
directly informed of the jury's requests, he clearly found out about
these requests a short time later. During the cross-examination of a
government witness, both Hosier's attorney and Judge Thompson
explicitly referred to the jury's note and indicated its contents.
Hosier was sitting with his attorney and he presumably heard these
remarks. Thus, Hosier became aware of the jury's note shortly after
it was received. If he believed that some further action was required
in response to the note, he had the opportunity to request this action
long before the case was submitted to the jury.
On appeal, Hosier suggests that, had he been present
when Judge Thompson initially notified the attorneys of the jury's
note, he might have been prompted to request a poll of the jurors
when they returned their verdict - to see whether their consideration
of any witness's testimony might have been affected by the
quickness of the prosecutor's speech or the softness of the defense
attorney's speech. But as explained above, Hosier learned of the
jury's note during the State's case-in-chief. He therefore had ample
opportunity to ask Judge Thompson to question the jury on these
matters before the jury retired to deliberate. Hosier's failure to
request a poll of the jurors at the close of the case clearly did not
stem from ignorance of the jury's note or lack of an earlier
opportunity to request that the court take further action in response
to the note.
Based on this record, we conclude that even though
Judge Thompson failed to inform Hosier of the jury's note when it
was received, this error was harmless beyond a reasonable doubt. It
therefore does not require reversal of Hosier's convictions.
The tape of Hosier's police interview
Hosier forged and passed the Richard Dahl checks on
various dates in August 1996. On September 9th, Hosier was
arrested by the Ketchikan police on a probation violation warrant in
another case, and he was transported to the police station in a patrol
car. After waiving his Miranda rights9, Hosier consented
to be interviewed by the police. During the ensuing interview, the
police asked Hosier whether he knew anything about the Richard
Dahl checks. Hosier insisted that he knew nothing about the checks
and that he had not forged or passed any checks.
However, Hosier did mention something of relevance
to the investigation: he told the police that he had been involved in
a fight at the Pioneer Bar and that he had sustained two black eyes
and a broken nose. This information corroborated the report of a
liquor store clerk who had received one of the forged checks. The
clerk told the police that the man who gave her the check returned to
the liquor store about a week later, and that he had two black eyes at
that time. (The clerk later identified Hosier in a line-up as the man
who had given her the forged check.)
Hosier's statements during the police interview were
relevant for another reason as well. As explained above, Hosier
denied all knowledge of the Richard Dahl checks. But when the
police examined the patrol car after the interview, they found several
small pieces of paper in the back seat where Hosier had been sitting.
These pieces of paper were fragments of a check belonging to
Richard Dahl.
At Hosier's trial, the State offered a tape recording of
Hosier's interview. The defense attorney objected that the interview
was irrelevant, but the prosecutor declared that Hosier had made
admissions during the interview that tended to prove his guilt. Judge
Thompson overruled the defense objection and allowed the tape to
be played to the jury.
After the tape was played, the defense asked the trial
judge to strike the tape. The defense renewed their objection that the
interview was irrelevant, and argued that Hosier had not made any
incriminating admissions. The defense also claimed that the tape
should not be admitted because many portions of it were inaudible.
Judge Thompson denied the motion to strike. However, because the
interview contained references to Hosier's past criminal activities
(i.e., the fact that he was on probation and that he had been arrested
for violating probation), the judge gave a lengthy and comprehensive
cautionary instruction to the jury, directing them to disregard any
suggestion that Hosier had committed criminal acts in the past.
A short time later, Hosier asked for a mistrial. Hosier
argued that a mistrial was required because the police interview of
him should not have been admitted into evidence. For the first time,
Hosier contended that he was intoxicated at the time of the interview
and, therefore, he had been incapable of knowingly waiving his
Miranda rights. Judge Thompson denied this motion. He noted that
Hosier had never suggested a Miranda violation until that time, and
he further noted that Hosier's only stated objection to the tape had
been its asserted lack of relevance.
On appeal, Hosier contends that the interview should
not have been admitted because it contains references to his past
criminal activities. He asserts that Evidence Rule 404(b) prohibited
the introduction of this evidence. But, as just explained, Hosier
never objected on this ground in the trial court. It was Judge
Thompson who noted this problem (after the tape was played) and
who, sua sponte, gave a cautionary instruction to the jury.
Nor was it plain error for Judge Thompson to allow the
State to introduce this evidence. During the interview, Hosier made
admissions that were relevant to the charges against him. True, the
interview took place following Hosier's arrest for unrelated probation
violations, and the interview contained references to Hosier's
probationary status. But the fact that the interview contained some
arguably objectionable portions did not render the entire interview
inadmissible.10 Moreover, Judge Thompson cautioned the jury
against the potentially objectionable portions of the interview. The
defense did not argue that this cautionary instruction was
insufficient, nor did they seek any elaboration of the instruction. On
this record, the admission of this evidence did not manifestly
prejudice the fairness of Hosier's trial.11
Conclusion
The judgement of the superior court is AFFIRMED.
Footnotes:
1 AS 11.46.505(a) and AS 11.46.130(a), respectively.
2 See Alaska Criminal Rule 7(e), which authorizes a trial judge to amend an
indictment at any time before the verdict so long as "no additional or different offense is
charged and the substantial rights of the defendant are not prejudiced".
3 See AS 11.46.580 for the definitions of "falsely alter", "falsely complete", "falsely
make", "forged instrument", "utter", and "written instrument". See AS 11.46.990(10) for the
definition of "intent to defraud" (and see AS 11.81.900(b)(16) for the definition of
"deception").
4 See State v. Fowler, 938 S.W.2d 894, 896-97 (Mo. 1997); Cooper v. State, 639
So.2d 1320, 1323 (Miss. 1994); State v. Fennelly, 461 A.2d 1090, 1094-95 (N.H. 1983);
State v. Brasslett, 451 A.2d 890, 892-93 (Me. 1982); State v. Nases, 649 P.2d 1138, 1139-
1140 (Haw. 1982); Boyette v. State, 580 S.W.2d 473, 474 (Ark. 1979); Albrecht v. State, 658
A.2d 1122, 1133 (Md. App. 1995) (dictum); Phan v. Commonwealth, 444 S.E.2d 9 (Va. App.
1994) (amendment of the identity of a robbery victim); State v. Johnson, 442 S.E.2d 191,
194 (S.C. App. 1994); Flowers v. State, 815 S.W.2d 724, 727-29 (Tex. Crim. App. 1991);
State v. Johnson, 728 P.2d 473, 477-78 (N.M. App. 1986); State v. McClennon, 669 S.W.2d
705, 706-07 (Tenn. App. 1984). But see State v. Eppley, 192 S.E.2d 441, 448 (N.C. 1972);
State v. Scarberry, 418 S.E.2d 361, 365-66 (W.Va. 1992) (holding that the identity of the
property owner is a material element of theft and can not be amended at trial).
5 437 P.2d 330 (Alaska 1968).
6 See id. at 331.
7 See id. at 332.
8 See, for example, Wamser v. State, 652 P.2d 98, 103 (Alaska 1982); Jones v.
State, 719 P.2d 265, 266 (Alaska App. 1986).
9 See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
10 See Linton v. State, 901 P.2d 439, 441 (Alaska App. 1995), quoting Brown v. J.C.
Penney Co., 667 P.2d 1047, 1050 (Or. App. 1983) (a trial judge does not commit error in
overruling an objection to a unit of evidence as a whole when a part of the evidence is
admissible over this objection).
11 See Potts v. State, 712 P.2d 385, 394 n.11 (Alaska App. 1985); Marrone v. State,
653 P.2d 672, 675-681 (Alaska App. 1982) (to qualify as "plain error", an error must be so
prejudicial that failure to correct it will perpetuate a manifest injustice).
-7- 1669
