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Buckwalter v State (05/11/2001) ap-1742
Buckwalter v State (05/11/2001) ap-1742
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 errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DANIEL ROY BUCKWALTER, )
) Court of Appeals No. A-7303
Appellant, ) Trial Court No. 3AN-S97-8622 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1742 May 11, 2001]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Larry D. Card, Judge.
Appearances: Chet Randall, Assistant Public
Advocate, and Brant K. McGee, Public Advocate, Anchorage, for
Appellant. 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.
STEWART, Judge.
A jury convicted Daniel Roy Buckwalter of first-degree
theft [Fn. 1] and scheme to defraud [Fn. 2] for stealing more than
$25,000 in goods from businesses in Anchorage, Eagle River, and
Wasilla during a ten-month period in 1997 and pawning the goods for
cash. Buckwalter argues that the superior court should have
dismissed his indictment. He also claims that the trial jury was
improperly instructed. We find no abuse of discretion or, at
worst, harmless error in those trial court rulings. We also reject
Buckwalter's claim that his net 6-year term to serve is excessive.
However, we remand the case for reconsideration of Buckwalter's
sentence because the superior court erroneously found that a
certain statutory aggravating factor applied to the sentence for
scheme to defraud.
In October 1997, Buckwalter pawned a lawn mower at a pawn
shop in Anchorage. While checking pawn shop records, Detective
James Scroggins of the Anchorage Police Department discovered that
the lawnmower Buckwalter pawned had been reported stolen by an
Anchorage landscaping company.
Detective Scroggins checked Buckwalter's activity in the
police department's pawn shop database and discovered that the pawn
shop lists showed that he and his wife, Donna Buckwalter, had
pawned hundreds of items between July 1996 and September 1997.
Further research by Scroggins confirmed that some of these items
were reported stolen, so Scroggins arranged for police surveillance
of the Buckwalters.
The police started following the Buckwalters in October
1997. They saw the couple stealing items from Wal-Mart and Carrs
stores and pawning those items at pawn shops. The police finally
arrested the Buckwalters on October 24, 1997, after they watched
them steal a stereo from the Carrs store in Eagle River and pawn it
at a Cash Alaska pawn shop on Muldoon Road. The truck Buckwalter
was driving when he was arrested had been reported as stolen from
ABC Motor Home Rentals.
Buckwalter told police that he was addicted to heroin and
that he had stolen the property to pay for drugs. Buckwalter
identified more than seventy items on the pawn lists that he was
sure he had stolen, many of them from Wal-Mart. At grand jury,
Detective Scroggins testified that most of the stolen goods were
"new-type" items. Scroggins testified that the goods Buckwalter
identified as stolen, combined with the items the police saw him
steal in October, totaled more than $25,000, the statutory minimum
for first-degree theft. A copy of the pawn lists that included
check marks identifying the goods Buckwalter admitted he had stolen
was presented to the grand jury. The State also offered testimony
that the police saw Buckwalter stealing items from Wal-Mart and
Carrs that were not on the pawn lists and that were worth close to
$900.
The grand jury jointly indicted the Buckwalters on one
count of scheme to defraud, one count of first-degree theft, and
one count of vehicle theft in the first degree. [Fn. 3]
Buckwalter moved to dismiss the indictment, arguing that (1)
the grand jury had not been adequately instructed that a scheme to
defraud cannot be based on ad hoc instances of fraud, but requires
an overall intent or plan to defraud five or more persons; (2) the
prosecutor had failed to present exculpatory evidence in the form
of statements by Donna Buckwalter that the thefts were spontaneous;
(3) the State presented insufficient evidence that Buckwalter had
stolen $25,000 or more; and (4) the State presented insufficient
evidence that the vehicle was stolen. Donna Buckwalter joined in
this motion and argued separately that the trial court had failed
to instruct the jury that it could aggregate thefts to reach
$25,000 only if the thefts were part of one course of conduct. [Fn.
4] Superior Court Judge Larry D. Card denied all the motions.
At trial, the State presented evidence that the
Buckwalters had pawned items, many of which Buckwalter had admitted
were stolen, at five Cash Alaska pawn shops and eight other pawn
shops in Anchorage and Eagle River. An assistant manager for the
Wasilla Wal-Mart produced a list of the 1997 retail values of
property Buckwalter had admitted to stealing from Wal-Mart and
arrived at a total of more than $22,000. The State presented
evidence of more stolen items for a total of $26,762.54.
The jury found Buckwalter guilty of first-degree theft
and scheme to defraud. The jury was unable to reach a verdict on
first-degree vehicle theft and the court declared a mistrial on
that count.
Judge Card sentenced Buckwalter to 6 years with 1 year
suspended for first- degree theft and 5 years with 1 year suspended
for scheme to defraud. The court ordered Buckwalter to serve 1
year of the sentence imposed for scheme to defraud consecutively to
the theft. The court also revoked Buckwalter's probation in an
unrelated case and imposed 360 days consecutive to the sentence in
this case.
Discussion
Buckwalter's grand jury claims
Buckwalter raises several claims relating to his
indictment that the superior court rejected. First, he renews his
claim that the State presented insufficient evidence that the value
of the property exceeded $25,000, the jurisdictional minimum for
first-degree theft.
The grand jury must indict a defendant "when all the
evidence taken together, if unexplained or uncontradicted, would
warrant a conviction of the defendant." [Fn. 5] When we review the
sufficiency of the evidence presented in support of an indictment,
we must decide if the evidence before the grand jury presented a
sufficiently detailed account of criminal activity and the
defendant's participation in that activity to meet that standard.
[Fn. 6]
Detective Scroggins testified at the grand jury.
Scroggins told the grand jurors that he had asked Buckwalter if any
of the hundreds of items on the lists of property pawned by him and
Donna Buckwalter were not stolen. Scroggins testified that
Buckwalter said "probably not." Buckwalter told Scroggins that he
owned a chainsaw, but the pawn lists showed that Buckwalter had
pawned approximately fifteen chainsaws in the period from March
through September 1997. Buckwalter marked more than seventy items
on the lists that he was "sure" he had stolen. In addition to the
items on the pawn lists, the grand jury heard evidence of items
Buckwalter stole while under police surveillance, which were worth
close to $900.
Scroggins testified that his duties included the
obligation to judge the value of stolen items. He estimated that
the value of the items Buckwalter admitted to stealing, and those
the police observed him steal, exceeded $25,000. We conclude that
this evidence provided the grand jury with a rational basis for
concluding that Buckwalter's theft totaled at least $25,000. [Fn.
7]
Next, Buckwalter argues that the State failed to present
exculpatory evidence to the grand jury. Although Buckwalter made
an exculpatory evidence claim below, the claim he now makes is not
the claim he advanced in the superior court. Now Buckwalter argues
that the State knew one of the pawn shops he frequented was not
part of his scheme to defraud because the pawn shop operator was
aware that the goods were stolen. Because Buckwalter did not raise
this claim before the superior court, we conclude that Buckwalter
waived this claim. [Fn. 8]
For his final grand jury claim, Buckwalter argues that
because the State aggregated a series of thefts to reach the
$25,000 value needed to prove first-degree theft, the State should
have instructed the grand jury that it had to find that the
aggregated thefts comprised a single course of conduct.
The common law allowed aggregation of misdemeanor thefts
to support a felony charge only if the thefts were from the same
owner at the same time and place and were motivated by a single
criminal intent. [Fn. 9] Alaska's aggregation statute, AS
11.46.980(c), is adapted from the less rigid Model Penal Code
approach. Model Penal Code sec. 223.1 takes a "middle ground"
between
the common law requirement of "unity of place, time, and victim"
and the unlimited aggregation of thefts permitted by some state
criminal codes. [Fn. 10] The commentary explains:
The degree of the actor's disregard of
property rights cannot always be judged by looking at the amount
which he takes at a single moment from a single person. The bank
teller who day after day steals $20 from his employer will have
$600 at the end of a month and clearly should be regarded as
engaged in felonious theft. The driver of a department store
delivery truck containing hundreds of parcels, each worth less than
$50, ought not to be regarded as a petty thief who is guilty of
multiple offenses when he sells the contents of the truck to a
"fence" and makes off with the proceeds. A swindler who moves
along the street cheating housewives out of individual petty
amounts similarly ought to be punished for the aggregate
misconduct, even though both
the place and the victim change with each transaction.[
[Fn. 11]]
The commentary to the Alaska Revised Criminal Code
indicates that the legislature intended to follow the Model Penal
Code, aggregating separate thefts where a course of conduct is
"calculated enough" to suggest a need for felony punishment. [Fn.
12]
We have not issued a published decision holding that a
jury finding of a single "course of conduct" is required when the
state aggregates separate thefts. Virtually all the jurisdictions
that have considered this issue (and that generally follow the
Model Penal Code approach) have concluded that a jury must decide
whether separate thefts are part of one course of conduct for
purposes of aggregation. [Fn. 13] Several courts have explicitly
held that a finding of one course of conduct is an element of theft
that must be included in the indictment when the government relies
on aggregation to determine the degree of theft. [Fn. 14]
We conclude that Alaska's aggregation statute was enacted
to require proof of a single course of conduct. The legislative
commentary to the aggregation statute states that its purpose was
to increase the potential punishment for individuals who had
engaged in a "calculated" series of thefts. [Fn. 15] The term
"calculated" suggests that an overarching scheme or plan is
required. Traditionally, courts have treated this question of
intent as one of fact for the jury, [Fn. 16] and there is no
indication in the legislative history of Alaska's statute [Fn. 17]
or in the commentary to the Model Penal Code [Fn. 18] to suggest
that the legislature intended to depart from this practice.
Buckwalter's grand jury was not instructed that they must
find that the thefts were committed in one course of conduct. To
charge a defendant with first-degree theft, the prosecution must
convince the grand jury that the stolen property has a value of
$25,000 or more. [Fn. 19] Because there was no evidence before the
grand jury that any of the individual items that Buckwalter stole
had a value of $25,000, the grand jury's indictment necessarily was
based on the aggregation of separate thefts. Because AS
11.46.980(c) permits aggregation only when thefts are pursuant to
one course of conduct, the State should have instructed the grand
jury on that requirement. The State concedes that this was error.
However, the State argues that this error was harmless
because the grand jurors must have understood that they were
dealing with a related series of thefts and that the State's theory
of the case was based on the aggregated value of stolen property.
The State argues that this is apparent because if the grand jury
had not found that the thefts were committed pursuant to a single
course of conduct, the grand jury would not have indicted
Buckwalter for engaging in a scheme to defraud. We agree.
Because the grand jury must have found that the series of
aggregated thefts was committed in a single scheme, we conclude
that there is no reasonable possibility that the grand jury would
have reached a different result if they had received a proper
course of conduct instruction. [Fn. 20]
Buckwalter's challenge to the jury instructions
Next, Buckwalter contends that his conviction should be
reversed because of a purported mistake in the jury instructions
relating to scheme to defraud.
The State's theory of prosecution was that Buckwalter had
committed a scheme to defraud under AS 11.46.600(a)(1) that he
had "engage[d] in conduct constituting a scheme to defraud five or
more persons or to obtain property ... from five or more persons by
false or fraudulent pretense, representation, or promise."
Specifically, the State contended that Buckwalter had defrauded
five or more pawn shops by falsely representing that he owned the
property he was pawning (when, in fact, he had stolen it).
When Judge Card and the parties discussed jury
instructions, Buckwalter's attorney suggested that the jury should
be told expressly that the pawn shops were the alleged victims of
the scheme to defraud. Otherwise, the defense attorney suggested,
the jury might convict Buckwalter based, at least in part, on the
fact that he had stolen property from Wal-Mart and other retailers
(who are also "persons" under the law). Judge Card agreed with
Buckwalter that the jury's consideration of potential victims
should be limited to the pawn shops. But after the prosecutor
declared that she would confine herself to arguing that the pawn
shops were the intended targets of the scheme to defraud, the judge
decided that no clarifying instruction was needed.
This matter arose again during jury deliberations after
the court received a note from the jury. This note read:
Re: Instruction 10/2nd part
We are having trouble [with the phrase]
"knowingly engaged in conduct constituting a scheme[.]"
We are confused about how to define
conduct in regard to "conduct constituting a scheme[.]"
Example[:] is "conduct" stealing goods
[?]
[I]s "conduct" pawning stolen goods
[?]
After Buckwalter's attorney was informed of this note, he
renewed his request for an instruction to clarify that the pawn
shops were the only alleged victims of the scheme to defraud. The
defense attorney argued that the jury note showed that at least
some jurors were thinking about convicting Buckwalter for scheme to
defraud based on his thefts from retailers. But Judge Card again
declined to give the requested instruction. Instead, he told the
jury that it could "consider all of the ... circumstances and the
reasonable inferences which [might] be drawn from them in
determining whether the defendant 'knowingly engaged in conduct
constituting a scheme.'" In addition, Judge Card directed the jury
to review the instructions defining the elements of scheme to
defraud and requiring the jury to find a joint operation of
culpable mental state and conduct before they could convict
Buckwalter of this crime.
On appeal, Buckwalter asserts that Judge Card committed
error when he failed to give the requested clarifying instruction.
Buckwalter renews his argument that, without such an instruction,
the jury might have relied on Buckwalter's thefts from Wal-Mart and
other retailers when the jury convicted him of scheme to defraud.
But the jury was entitled to consider and rely on
Buckwalter's thefts from Wal-Mart and other retailers when they
assessed whether Buckwalter had engaged in a scheme to defraud.
Although the State's theory was that Buckwalter had defrauded the
pawn shops, he obviously could not have done this without stealing
the goods that he later pawned. Thus, a jury reasonably could find
that Buckwalter's series of thefts from retailers was a necessary
component of Buckwalter's plan to obtain money fraudulently from
pawn shops. There was no error in allowing the jury to consider
and rely on those thefts in reaching its conclusion that Buckwalter
had engaged in a scheme to defraud.
To the extent that the jury instructions failed to state
explicitly that the pawn shops, not the retailers, were among the
alleged five or more targets of Buckwalter's scheme to defraud, the
summations of both the prosecutor and the defense attorney
clarified this issue for the jury. In their final arguments, both
the prosecutor and the defense attorney stressed that the pawn
shops were the "persons" referred to in the scheme to defraud
instruction. We have repeatedly held that the arguments of the
parties can cure flaws or omissions in the jury instructions. [Fn.
21] In Buckwalter's case, we reach a similar conclusion: any
arguable omission in the jury instructions was cured by the
arguments of the parties.
Buckwalter's attack on his sentence
Finally, Buckwalter argues that his sentence is
excessive. Scheme to defraud and first-degree theft are class B
felonies. Buckwalter was a second felony offender and faced a
presumptive term of 4 years' imprisonment. [Fn. 22] Judge Card
found that several statutory factors from AS 12.55.155 had been
proven: (c)(8) (Buckwalter had a prior criminal history involving
repeated instances of assaultive behavior); (c)(9) (Buckwalter knew
that his offenses involved more than one victim); (c)(21)
(Buckwalter had a history of repeated criminal conduct similar to
the crimes for which he was being sentenced); and (d)(9) (least
serious conduct within the definition of first-degree theft).
In weighing the aggravating and mitigating factors, Judge
Card gave the greatest weight to Buckwalter's repeated violation of
criminal laws, characterizing Buckwalter as a "one-man crime
spree." Buckwalter had a prior felony conviction for second-degree
theft in 1988, and numerous misdemeanor convictions, including a
1997 conviction for disorderly conduct and 1996 convictions for
assault, larceny, and shoplifting. Judge Card placed secondary
emphasis on the fact that Buckwalter stole from and deceived
multiple victims to feed his heroin addiction. Judge Card put the
least weight on Buckwalter's prior assaults against his wife, which
included an assault conviction and a disorderly conduct conviction
that Judge Card treated as "effectively an assault case" because it
had been reduced pursuant to a plea agreement. Judge Card found
one mitigating factor: that the theft charge was the least serious
included in the definition of the offense because the State's proof
only slightly exceeded the statutory minimum of $25,000. He found
that Buckwalter's scheme to defraud conviction was not mitigated
because it was a typical offense.
In applying the Chaney [Fn. 23] factors to determine the
amount by which the presumptive term should be adjusted, Judge Card
emphasized community condemnation and reaffirmation of societal
norms. He also noted that Buckwalter had a substantial history of
incarceration and had failed to take advantage of numerous
opportunities for rehabilitation and treatment.
Buckwalter argues that the aggravating factors found by
the court did not warrant its deviation from the presumptive term
for his offenses because only one of his prior theft offenses was
a felony; his prior assaults were not particularly serious; and in
each offense, the State had to prove that Buckwalter had victimized
several entities. He also argues that he should have been
sentenced to concurrent terms because his theft and scheme to
defraud offenses affected the same societal interests.
The record supports Judge Card's conclusion that
Buckwalter's prior criminal history was an aggravating factor.
Buckwalter's history of thefts and substance abuse spanned ten
years and the presentence report was not optimistic about his
prospects for reform, noting that Buckwalter historically had
"failed to follow through with treatment" and "there is no reason
to imagine that anything has changed now." Judge Card's finding
that Buckwalter had a history of assaultive behavior was supported
by two convictions related to domestic violence against his wife.
Judge Card rejected evidence of uncharged assaults.
But Judge Card erred when he concluded that the scheme to
defraud was aggravated because Buckwalter knew that his offense
involved more than one victim. Under AS 12.55.155(e), "[i]f a
factor in aggravation is a necessary element of the present offense
... that factor may not be used to aggravate the presumptive term."
Buckwalter was convicted for engaging in conduct constituting a
scheme to defraud five or more persons. Because that offense
requires a finding that Buckwalter intended to defraud five or more
persons, it cannot be aggravated because Buckwalter knew more than
one victim was involved.
Buckwalter also claims that he should have been sentenced
to concurrent terms for the theft and scheme to defraud. Judge
Card ordered Buckwalter to serve 1 year of the scheme to defraud
sentence consecutively. Under AS 12.55.025(g)(1), a court has
discretion to impose concurrent sentences for multiple convictions
if the crimes violate similar societal interests. But here, though
Buckwalter's offenses were closely intertwined, his thefts from
Wal-Mart and other businesses and his misrepresentations to the
pawn shops violated sufficiently distinct social norms to warrant
a consecutive sentence. [Fn. 24]
Buckwalter also claims that Judge Card failed to consider
the totality of the circumstances in imposing a consecutive
sentence on a probation revocation in an unrelated misdemeanor
case. But this claim was inadequately briefed in Buckwalter's
opening brief, so we consider it waived. [Fn. 25] Furthermore,
Buckwalter was obliged to designate a sufficient record for a
meaningful review of his claim, but he did not include a record for
the misdemeanor case. [Fn. 26]
From our review of the entire record, we conclude that
Buckwalter's sentence is not clearly mistaken. However, because
Judge Card's finding on an aggravating factor relating to scheme to
defraud was impermissible, we will remand the case for Judge Card
to reconsider the sentence he imposed without relying on that
aggravating factor.
Conclusion
The judgment of the superior court is AFFIRMED. The case
is REMANDED for the superior court to reconsider Buckwalter's
sentence in light of our conclusion that the superior court
erroneously found an aggravating factor. We do not retain
jurisdiction.
FOOTNOTES
Footnote 1:
AS 11.46.100(1); AS 11.46.120(a)(1); AS 11.16.110(2).
Footnote 2:
AS 11.46.600(a)(1); AS 11.16.110(2).
Footnote 3:
AS 11.46.360(a)(1).
Footnote 4:
See AS 11.46.980(c).
Footnote 5:
Alaska R. Crim. P. 6(q).
Footnote 6:
See Taggard v. State, 500 P.2d 238, 242 (Alaska 1972); Marion
v. State, 806 P.2d 857, 859 (Alaska App. 1991).
Footnote 7:
Although Buckwalter argues that his conviction for first-
degree theft should be reversed, even if Buckwalter had prevailed
on this claim, it appears that the State would be entitled to
request that a conviction be entered for second-degree theft.
SeeState v. Ison, 744 P.2d 416, 420 (Alaska App. 1987); Nix v. State,
624 P.2d 823, 824-25 (Alaska App. 1981).
Footnote 8:
See Alaska R. Crim. P. 12(b)(2), (e); Gaona v. State, 630 P.2d
534, 537 (Alaska App. 1981).
Footnote 9:
See generally Turner v. State, 636 S.W.2d 189, 195 (Texas
Crim. App. 1980); State v. Garman, 984 P.2d 453, 456 (Wash. App.
1999); Model Penal Code (MPC) sec. 223.1(2)(c) cmt. 3(b) at 141-42
(1980); Larceny Takings as Single or Separate, 53 A.L.R. 3d 398
(1973).
Footnote 10:
MPC sec. 223.1(2)(c) cmt. 3(b) at 141-42 & n.37 (citing La.
Rev.
Stat. sec. 14:67, which permits aggregation of takings "by a number
of
distinct acts of the offender").
Footnote 11:
Id.
Footnote 12:
Commentary on the Alaska Revised Criminal Code, Senate Journal
Supp. No. 47 at 34-35, 1978 Senate Journal 1399 (quoting Proposed
Revision of the Michigan Criminal Code at 222 (Mich. State Bar
1967)). The Alaska commentary provides the following examples:
[A] bus driver or several bus
drivers might pursue a scheme in which each day he or they would
withhold not more than two or three dollars from the day's
receipts. Or a transient operator might move from house to house
in a neighborhood promising to seal roofs at $65 a roof, either
absconding with the payment or dabbing at the roof with a few cents
worth of tar. In either instance the employer, the householder and
the community incur substantial financial loss. The ... course of
conduct is calculated enough that it suggests a need for a
substantial term [of] imprisonment or a period under probation.
However, so long as each taking is considered a separate offense
all the acts will be in the misdemeanor category only ... By
aggregating the amounts, the defendant may be brought into the
felony range of punishments[.]
Id.
Footnote 13:
See, e.g., State v. Desimone, 696 A.2d 1235, 1244 (Conn. 1997)
(citing Conn. Gen. Stat. sec. 53a-121(b)); State v. Barthell, 554
So.2d 17, 18 (Fla. Dist. App. 1989) (citing Fla. Stat. sec.
812.012(9)(c)); State v. Amsden, 300 N.W.2d 882, 886 (Iowa 1981)
(citing Iowa Code sec. 714.3); State v. Sampson, 413 A.2d 590, 592
(N.H. 1980) (citing N.H. Rev. Stat. sec. 637: 2V(a)); State v.
Damiano, 730 A.2d 376, 392-93 (N.J. Super. 1999) (citing N.J. Stat.
2C:20- 2b(4)); State v. Baca, 934 P.2d 1053, 1056 (N.M. 1997)
(citing MPC sec. 223.1(2)(c)); State v. Johnston, 478 N.W.2d 281,
283
(S.D. 1991); Turner, 636 S.W.2d at 196 (citing Tex. Penal Code sec.
31.09); State v. Garman, 984 P.2d at 457 (citing former Wash. Rev.
Code 9A.56.010(17)(c) (1998)). But see State v. Heslop, 842 S.W.2d
72, 75 (Mo. 1992) (en banc) (holding that aggregation statute
serves the limited purpose of permitting the state to combine the
value of property stolen during a single course of conduct to
determine if the defendant should be charged with a class C felony
or a lesser offense).
Footnote 14:
See, e.g., State v. Childs, 576 A.2d 42, 47 (N.J. Super.
1990); Miller v. State, 909 S.W.2d 586, 589 n.4 (Texas App. 1995).
Footnote 15:
Commentary on the Alaska Revised Criminal Code, Senate Journal
Supp. No. 47 at 34-35, 1978 Senate Journal 1399.
Footnote 16:
See 53 A.L.R.3d at 407-08.
Footnote 17:
See Commentary on the Alaska Revised Criminal Code, Senate
Journal Supp. No. 47 at 34-35, 1978 Senate Journal 1399.
Footnote 18:
See MPC sec. 223.1(2)(c) cmt. 3 at 138-44.
Footnote 19:
See AS 11.46.120; AS 11.46.110(b).
Footnote 20:
See State v. Waskey, 834 P.2d 1251, 1253 (Alaska App. 1992)
(dismissal of charge not required where there is no reasonable
possibility that the grand jurors' decision would have changed if
they had received the requested instruction).
Footnote 21:
See Braun v. State, 911 P.2d 1075, 1081 (Alaska App. 1996);
Norris v. State, 857 P.2d 349, 355 (Alaska App. 1993); O'Brannon v.
State, 812 P.2d 222, 229 (Alaska App. 1991).
Footnote 22:
AS 12.55.125(d)(1).
Footnote 23:
See State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970); AS
12.55.005.
Footnote 24:
Cf. Coleman v. State, 621 P.2d 869, 885 (Alaska 1980).
Footnote 25:
See Adamson v. University of Alaska, 819 P.2d 886, 889 n.3
(Alaska 1991).
Footnote 26:
See Ketchikan Retail Liquor Dealers Ass'n v. State, Alcoholic
Beverage Control Bd., 602 P.2d 434, 438-39 (Alaska 1979) modified,
615 P.2d 1391 (Alaska 1980) (a party's failure to designate a
record to support the party's claims justifies a reviewing court in
deciding those claims against the party).
