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Ostlund v. State (7/26/2002) ap-1813

Ostlund v. State (7/26/2002) ap-1813

                             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

WILLIAM B. OSTLUND,           )
                              )            Court of Appeals No. A-
7787
                                       Appellant,  )        Trial
Court No. 4FA-S99-3964 CR
                              )
                  v.          )                       O P I N I O
N
                              )
STATE OF ALASKA,              )
                              )
                                             Appellee.          )
[No. 1813 - July 26, 2002]
                              )

          Appeal  from the Superior Court, Fourth  Judi
          cial  District,  Fairbanks, Jane  F.  Kauvar,
          Judge.

          Appearances:   Bill  D.  Murphree,  Bill   D.
          Murphree,  P.C., and Robert John, Law  Office
          of Robert John, Fairbanks, for Appellant.  W.
          H. Hawley, 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.

          COATS,  Chief Judge.
          MANNHEIMER, Judge, concurring.


          A  jury  convicted William B. Ostlund of felony driving

while  intoxicated  (DWI)1 and driving with a  revoked  operators

license.2  He raises two issues on appeal: (1) whether the  trial

judge erred when she denied his motion to bifurcate the trial  so

the  jury would not hear evidence of his prior convictions before

          deliberating on the current DWI allegation and (2) whether the

trial judge erred in failing to give a jury instruction regarding

photographs he contends the police might have taken at the  scene

of  his alleged offense.  We reverse Ostlunds convictions because

we  find the trial court erred when it did not bifurcate Ostlunds

trial.  However, we find no error in the trial judges refusal  to

give the proposed jury instruction regarding the photographs.



          Ostlands  motion to bifurcate his felony  DWI

          trial

          A  defendant  commits felony DWI when he  drives  while

intoxicated  and  has two or more prior convictions  for  DWI  or

refusal to submit to a chemical test within the past five years.3

The  state  charged  Ostlund with felony DWI  for  driving  while

intoxicated  while  having two prior DWI convictions  within  the

past  five years.  Prior to trial, Ostlund argued that presenting

evidence of his prior convictions to the jury would prejudice the

jury  in  reaching a decision about whether he had committed  his

current  DWI offense.  He argued that the court should  have  the

jury  only determine whether he had committed the present offense

of  driving while intoxicated.  He agreed to stipulate to the two

prior  convictions  if the jury convicted him  of  driving  while

intoxicated.  Superior Court Judge pro tem Jane F. Kauvar  denied

Ostlunds  request.   As  a result of Judge  Kauvars  ruling,  the

parties  stipulated  to the two prior DWI convictions  and  Judge

Kauvar advised the jury of Ostlunds prior convictions.  Following

the  presentation  of  evidence, the jury  convicted  Ostlund  of

felony driving while intoxicated.

          In  State  v.  McLaughlin,4 this  court  discussed  the

prejudice  that could accrue to a defendant from introducing  his

prior  convictions in a case where the prior convictions  are  an

element of the offense:

               Both  in  Alaska  and elsewhere,  courts
          have recognized that evidence concerning  the
          number  and  nature  of  a  defendants  prior
          convictions  can  pose  a  serious  risk   of
          prejudice when introduced in a case in  which
               a  prior conviction is an element of the
          offense  charged.  For this reason, appellate
          courts  have generally agreed that the  trial
          court  has  broad  discretion  to  limit  the
          amount  of evidence allowed on the issue  and
          to   regulate  the  form  in  which   it   is
          presented,  particularly when  the  defendant
          does   not   dispute  the  prior  convictions
          existence.5

McLaughlin  was charged with the offense of felon  in  possession
(possession  of  a concealable firearm by a previously  convicted
felon).6  He sought to keep the state from presenting evidence of
his prior conviction to the jury, fearing that the jury might  be
prejudiced against him because he had a prior felony conviction.7
McLaughlin offered to stipulate to his prior conviction and  have
the  court  withdraw the prior conviction element from the  jury.
The  trial judge agreed with McLaughlin and ruled that  the  jury
would  decide  only  the  issue of whether  McLaughlin  knowingly
possessed  a  concealable firearm  McLaughlins  criminal  history
would  be inadmissible unless it somehow became relevant to other
issues arising during the course of the trial.8
          The  state  filed a petition for review to this  court.
The state argued that McLaughlins prior felony conviction was  an
element  of  McLaughlins  offense and  the  trial  court  had  no
authority to prevent the state from presenting evidence  of  this
element to the jury.  We accepted the states petition for review,
and a majority of this court reversed the trial courts decision.9
          The  court  stated  that the issue was  close.10    The
court  reasoned  that, if the issue was strictly  an  evidentiary
matter, a strong case could be made to exclude McLaughlins  prior
conviction.
          In  most  cases, however, once the  defendant
          concedes   the   prior  conviction   element,
          evidence of prior convictions would  have  no
          evidentiary relevance except to establish the
          defendants  general  propensity   to   commit
          crimes    an   impermissible,  and  therefore
          illegitimate,  purpose under Alaska  Rule  of
          Evidence 404(b)(1).11

But the court concluded that other policy arguments supported the
governments  introduction of evidence  to  prove  McLaughlin  had
prior felony convictions.12  The court reasoned that if the  jury
was  only  allowed  to act as a fact-finder to determine  whether
McLaughlin had possessed a firearm, the jury might be  left  with
the  inaccurate  impression that McLaughlin was being  prosecuted
for  conduct  that was not unlawful.13  Because possession  of  a
concealable   firearm   is  generally  legal,   the   governments
prosecution  of  McLaughlin only made  sense  because  he  was  a
convicted  felon.  The court concluded that it was necessary  for
the  jury  to understand why it was convicting or acquitting  the
defendant  for  the  jury to properly fulfill  its  role  in  the
criminal justice system.14
          The  court specifically limited its decision  to  cases
where  the  defendants conduct was conduct  that  was  ordinarily
lawful  but  became unlawful because the defendant  had  a  prior
felony conviction:
          We  further note that our decision  addresses
          only the specific circumstances of this case,
          in  which  the  charged offense  consists  of
          conduct  that is ordinarily lawful, which  is
          rendered   unlawful  only  because   of   the
          defendants prior conviction of a felony.   By
          contrast, other types of crimes that  include
          the existence of a prior felony conviction as
          an  element deal with conduct that is already
          independently  unlawful; in such  cases,  the
          prior-conviction  element  serves   only   to
          enhance the seriousness of the offense.
          . . .
          In  this  latter  type of  case,  failing  to
          inform   the  jury  of  the  prior-conviction
          element  arguably entails few of the problems
          presented in the former type of case[.]15

          In Ross v. State,16 we addressed the kind of offense we
had  reserved  judgment on in McLaughlin; an  offense  where  the
defendants  conduct, driving while intoxicated, was independently
unlawful  and where the defendants prior convictions served  only
to enhance the seriousness of the offense.17

          Ross  contended  that  his prior DWI  convictions  were
strictly a matter for the court to consider at sentencing  rather
than an element of felony DWI.18   He contended that because  his
prior  convictions  were not an element of the  offense,  it  was
improper  for the trial court to allow the jury to hear  evidence
          of his prior DWI convictions.  He did not otherwise suggest to
the  trial court any specific procedures to protect himself  from
any  unfair  prejudice caused by the jury considering  his  prior
convictions.  We held that the prior convictions are  an  element
of  felony  DWI.19   We  declined to find that  the  trial  judge
committed plain error by allowing the jury to consider both Rosss
prior  convictions  and  his  DWI  offense  simultaneously.    We
recognized the prejudice that might result from having the  court
inform  the  jury that the defendant had committed the  identical
offense  on  prior occasions, and we recommended to  judges  that
they bifurcate felony DWI trials:
               Another way of dealing with this problem
          one that we recommend to judges in the future
          is  to  bifurcate the trial.  In a bifurcated
          trial,  the  jury would first decide  whether
          the  defendant  was guilty of  driving  while
          intoxicated  on  the date  specified  in  the
          indictment;  if the jury found the  defendant
          guilty,  the same jury would then decide  the
          issue  of  the  defendants prior convictions.
          This  solution  would preserve  both  parties
          right  to a jury determination of all issues,
          while at the same time avoiding the potential
          for unfair prejudice that would otherwise  be
          posed  by  evidence of the  defendants  prior
          convictions.   Moreover, this solution  works
          equally   well  regardless  of  whether   the
          defendant  is  willing to  stipulate  to  the
          prior   convictions  or  wishes  to   contest
          them.20

We  also  pointed out that, if the defendant and the  state  were

willing  to waive jury trial on the prior-convictions element  of

felony DWI, then this element could be tried to the court.21

          We  fail to see why Judge Kauvar did not agree to  this

procedure.   The state never argued that Ostlunds prior  offenses

were  relevant for any purpose other than to establish  that  his

driving  while intoxicated offense was a felony.   By  holding  a

unitary  trial in which the state was allowed to present evidence

that  Ostlund  had  two  prior convictions  for  DWI,  the  judge

unnecessarily  presented the jurors with information  that  could

have  unfairly prejudice their deliberations.  Having heard  that

          Ostlund had committed DWI on two prior occasions, the jury might

have used this information for the purpose prohibited by Evidence

Rule   404(b)(1):  to  infer  that  Ostlund  was  a  person   who

characteristically drove while intoxicated, thus making  it  more

likely that he was guilty of the current DWI charge.

          We  note that the majority of jurisdictions considering

this issue have created procedures for the trial court to try the

felony  DWI  without  the  jury  being  informed  of  the   prior

convictions   during  its  consideration  of  the   current   DWI

offense.22    Those jurisdictions have concluded  that  the  Ross

recommendations (i.e., bifurcation, stipulation, or  waiver)  are

the proper ways to try felony DWI offenses to protect a defendant

from  being  unfairly prejudiced by evidence of his  earlier  DWI

convictions.

          [A]bsent the bifurcated process, the jury  is
          directly  confronted  with  evidence  of  the
          defendants  prior criminal activity  and  the
          presumption of innocence is destroyed and . .
          .  if the presumption of . . . [innocence] is
          destroyed  by proof of an unrelated  offense,
          it  is  [all  the] more easily  destroyed  by
          proof of a similar related offense.23

          Accordingly, we conclude that Judge Kauvar  abused  her
discretion  by failing to adopt the procedures we recommended  in
Ross.  We therefore reverse Ostlunds convictions.

          Ostlunds request for a jury instruction  that
          absent  photographs should have been presumed
          to favor him
          Ostlund  argues that Judge Kauvar erred in  failing  to
give  an instruction concerning some photographs he contends  the
police  might have taken at the scene of his alleged DWI offense.
Ostlund argues the court should have instructed the jury that, if
the  jury  found  the  police had taken and  failed  to  preserve
photographs from the scene of the alleged DWI offense,  the  jury
should  assume the missing evidence would have been favorable  to
the defendant.  But the sole evidence that photographs were taken
at  the scene was a checked box on the police report stating that
          the officers took photographs of the scene.  The testimony at
trial  was  that  the troopers had not taken any photographs  and
that the checked box on the police report was probably a clerical
error.
          After  hearing  the evidence, Judge Kauvar  refused  to
give  Ostlunds  proposed  instruction.  She  concluded  that  the
police  had  not taken any photographs.  She also concluded  that
even  if  photographs existed, there was no  evidence  that  they
would have been relevant to resolving any contested fact.
          We  conclude  Judge Kauvar did not err  in  determining
that  the  evidence  indicated  the  police  did  not  take   any
photographs  and that, even if photographs had been  taken,  they
would  not have been relevant to determining any contested  fact.
In  Catlett v. State,24 the Alaska Supreme Court held  that  even
though  the  police lost or destroyed photographs  of  the  crime
scene,  the  defendant was not prejudiced when the record  showed
that   the  photographs  would  have  been  cumulative  of  other
available  evidence.25  In Lee v. State,26 this court  held  that
even if the police failed to preserve two traffic signs that were
allegedly hit and broken off by the defendants car, the defendant
failed  to  show prejudice in light of the fact the  trial  judge
found  that,  under the circumstances, the signs would  not  have
been  exculpatory.27  We conclude that Judge Kauvar did not abuse
her discretion in refusing to give Ostlunds proposed instruction.

          Conclusion
          Ostlunds  request  for  bifurcation  should  have  been
granted.    For  this  reason,  his  convictions  are   REVERSED.
However,  assuming  Ostlund is retried, we uphold  Judge  Kauvars
decision  to  reject Ostlunds proposed instruction regarding  the
photographs.

MANNHEIMER, Judge, concurring.


          I   agree   that  Ostlunds  trial  should   have   been

bifurcated, but I am writing separately to more fully explain our

stand on this issue.

          Judge  Coats begins his substantive discussion  of  the

bifurcation issue with a quotation from State v. McLaughlin.1  In

this  passage  from  McLaughlin, this court acknowledged  that  a

trial judge has broad discretion when formulating the rules  that

will  govern  the  admission of evidence of  a  defendants  prior

convictions.2   But  a  dozen  paragraphs  later,   Judge   Coats

concludes  that  Ostlund is entitled to a new trial  because  his

trial  judge did not follow a procedure that we recommended   but

did not mandate  in Ross v. State, 950 P.2d 587, 592 (Alaska App.

1997).   If trial judges have broad discretion in this area,  why

are  we substituting our judgement for the trial judges?  Why  do

we  conclude that Ostlunds judge abused her discretion  when  she

declined to bifurcate the trial?

          As  we indicated in McLaughlin, the answer lies in  the

balancing  of  two  competing  principles.   One  is   the   laws

traditional  ban on propensity evidence  the use of a  defendants

other crimes to prove the defendants character. The other is  the

laws  insistence  that jurors be apprised  of  all  the  relevant

facets  of the episode and the conduct that they are being  asked

to judge.



Our decision in State v. McLaughlin


          When  a  jury hears evidence that a defendant

has  previously  committed  the  same  crime  currently

charged against him, there is a danger that the  jurors

will  view the defendants past crimes as evidence  that

the   defendant  is  a  person  who  characteristically

engages in this type of criminal behavior  and that the

jurors will presume the defendants guilt from the  fact

that  the  defendant has done it before.  This  is  why

Alaska  Evidence  Rule 404(b)(1)  bars  evidence  of  a

defendants other wrongdoings when this evidence has  no

relevance   other   than   to  prove   the   defendants

characteristic  tendency  to  engage  in  crime,   thus

circumstantially  tending to show  that  the  defendant

committed the crime being litigated.3

          When  a  defendant is charged with an offense

that  requires  proof of prior convictions,  one  might

reasonably  contend  that the  situation  is  different

because,  in these circumstances, the defendants  prior

crimes  have  a  relevance outside the  normal  ban  on

character evidence.  But the question presented is also

different:  not whether evidence of the defendants past

crimes is to be excluded completely, but rather whether

this evidence should be presented in a separate portion

of the trial.

          In  McLaughlin,  we  acknowledged  that  even

though  Evidence  Rule 404(b)(1) technically  does  not

apply  to  this situation, the policy of Rule 404(b)(1)

strongly  suggests  that the issue  of  the  defendants

prior  convictions should be segregated from the  other

issues  in  the  case, at least when the  defendant  is

willing to concede the prior convictions:

     
     From    the    narrow   standpoint    of
evidentiary relevance[,] a strong case can be
made  that  the  evidence of  [a  defendants]
prior  convictions should  ...  be  excluded.
The    specific   circumstances    of    some
felon-in-possession  cases  might  give   the
     state  legitimate reasons  to  introduce
evidence    of    [the   defendants]    prior
convictions  even  though  the  defendant  is
willing   to   concede  the  prior-conviction
element.   In most cases, however,  once  the
defendant   concedes   the   prior-conviction
element, evidence of prior convictions  would
have  no  evidentiary  relevance  except   to
establish  the defendants general  propensity
to   commit  crimes   an  impermissible,  and
therefore illegitimate, purpose under  Alaska
Rule of Evidence 404(b)(1).

Id. at 1273.

But  despite  this potential for unfair  prejudice,  we

rejected  bifurcation in McLaughlin.  The defendant  in

McLaughlin was charged with the crime of being a  felon

in  possession  i.e., possessing a concealable  firearm

after having been convicted of a felony.4  We concluded

that when a defendant stands trial for this charge, the

policy of Rule 404(b)(1) is outweighed by the competing

policy of having the jury fully informed concerning the

crime they are asked to judge.

          As we pointed out in McLaughlin, [t]he jurys historical

role  in  our criminal justice system is more than that  of  fact

finder:   the jury has always served as the vehicle of  community

conscience in the courtroom.5  Because of this, evidence  of  the

defendants other crimes should be admitted (despite its potential

for  unfair prejudice) when this evidence is needed for the jurys

complete   understanding  of  the  defendants   alleged   present

wrongdoing.   Essential  to  the jurys  ability  to  fulfill  its

traditional role is its full understanding of the cause at  issue

the  wrongdoing for which the accused has been held  to  answer.6

McLaughlin explains this principle at some length:

          
               Without full knowledge of the nature  of
          the  crime,  the jury cannot  speak  for  the
          people  or  exert  their  authority.   If  an
          element of the crime is conceded and stripped
          away from the jurys consideration, the jurors
          become  no more than factfinders.   The  jury
          must  know why it is convicting or acquitting
               the defendant, because that is simply how our
          judicial system is designed to work.
          
               The  issue is one transcending  a  jurys
          ability  to  determine guilt or innocence  in
          any   individual  case.   It  implicates  the
          publics  trust  in  our  system  of  criminal
          justice.   If those in the inner  sanctum  of
          the  criminal justice system  the judge,  the
          prosecutor, and defense counsel  cloister  to
          themselves  the  true nature  of  a  criminal
          prosecution,  jurors  will  inevitably  sense
          manipulation:  that they are participants  in
          a  game  of  justice whose rules  are  beyond
          their  trust.  The systems distrust of jurors
          will eventually mirror back upon the court in
          the   form  of  public  suspicion.   Citizens
          called  upon  to serve as jurors  will  bring
          with  them,  not a healthy skepticism  toward
          the   prosecutors  power,  but  a  subversive
          distrust of the legal process itself.
          
          McLaughlin, 860 P.2d at 1277.7

          Normally,  possession of a  handgun

is  not a crime.  The defendants prior felony

is  the circumstance that makes possession of

the  handgun illegal.  We therefore concluded

in   McLaughlin  that  when  a  defendant  is

charged    with   violating   the   felon-in-

possession statute, the jury must be told  of

the   defendants  prior  felony   conviction,

regardless   of  whether  this   element   is

actually  disputed  for without  knowing  the

true  nature  of  the charges,  the  jury  is

deprived of context for its consideration  of

the issues actually in dispute.8



Evidence of a defendants past wrongdoing when it is
relevant to establish the nature or context of the
defendants present conduct


     McLaughlin can be viewed as one of  a  series

of  Alaska  cases recognizing the  principle  that

evidence  of a defendants past wrongdoing  may  be

needed   in   order  for  the  jury  to   properly

understand the nature or context of the defendants

present  conduct.   In  such  circumstances,   the

evidence of past wrongdoing is admissible  despite

the   restriction   codified  in   Evidence   Rule

404(b)(1).

     For  instance, in Dulier v. State,  511  P.2d

1058   (Alaska  1973), the defendant  was  charged

with  complicity in a murder that  was  physically

perpetrated by two of his housemates.  The  States

theory was that Dulier, through a long pattern  of

physical    and    mental    abuse,    established

psychological control over the other people living

in  the house  to the point that two of them  were

willing to commit homicide if Dulier ordered  it.9

The  supreme  court concluded that the  State  was

properly allowed to introduce evidence of  Duliers

past  acts of coercion and abuse to establish  his

relationship  to  the other people  in  the  house

and, thus, his complicity in the murder:


[W]e  hold  that the probative value  of  the
evidence   of   the   [defendants]   previous
uncharged  offenses outweighed  any  possible
prejudicial impact.  ...  The evidence tended
to show Duliers control and domination of the
other  occupants of the apartment.  It proved
his   complicity  in  the  unlawful  killing.
Because  the  evidence completed the  picture
and  set  the  stage  for the  offense  being
tried, it was admissible.

Id. at 1061.

          Similarly,  in McKee v. State,  488

P.2d  1039  (Alaska 1971), the supreme  court

upheld  the  admission of evidence  that  the

          defendant had previously assaulted and raped

one of the States witnesses:


     It  is  true that such evidence normally
would  be excluded because it would not  tend
to   establish  a  proposition  material   to
appellants  guilt.  However, as  we  held  in
Kugzruk  v. State, 436 P.2d 962, 967  (Alaska
1968),  evidence is admissible when it  tends
to  complete the picture or set the stage for
the  crime for which the defendant  is  being
tried.

     An  eye  witness to an event  should  be
permitted  to  testify in  a  natural  manner
about  what  he  observed.   This  ordinarily
includes  such background facts as where  the
witness was, how he happened to be there, and
what  interrelationship he may have had  with
other  persons  present at  the  event  about
which  the witness testifies.  Otherwise  the
testimony  of the witness may seem distorted,
improbable, or incredible to some degree.  To
strip away such background evidence may  well
result  in an artificial or false picture  of
what occurred.

Id. at 1041-42.

          See  also Braham v. State, 571 P.2d

631   (Alaska  1977),  an  attempted   murder

prosecution  in which the States  theory  was

that   Braham  hired  another  man,   Jeffrey

Koelzer,  to  murder one of Brahams  enemies.

The  supreme court ruled that the trial judge

properly   allowed  the  State  to  introduce

evidence  suggesting  that  Braham  had  been

involved in previous attempts on the  victims

life:


     An  inference that the jury  might  well
have  drawn  from  this [evidence  was]  that
Braham had something to do with the two prior
attempts on Petersons life.  To this  extent,
the  evidence had a prejudicial effect.   But
this  must  be weighed against its  probative
value.   The  purpose and effect of  Koelzers
testimony  was not to prove that  Braham  was
guilty  of  two prior attempts  on  Petersons
life.   Rather,  it  was introduced  for  the
purpose of showing that, since such incidents
figured   heavily  in  conversations  between
Braham  and Koelzer, and Braham had knowledge
of  the  attempts  and gave  them  his  moral
support,   Koelzers  testimony  that   Braham
wanted Peterson killed would be credible.  At
the  trial, this issue was hotly disputed  by
Braham.

     The  evidence in question would tend  to
show  that it was not unbelievable, as Braham
contended,  that Braham had hired Koelzer  to
kill  Peterson.  The record demonstrates that
the   evidence  of  prior  attempts  was   so
integrated into the story of this crime, that
to  exclude  it would have made  the  factual
setting of this crime incomprehensible to the
fact  finder.   Thus the need to  admit  this
evidence   was   great,  and   it   had   the
permissible effect of completing the  picture
or  setting the stage of the crime for  which
Braham  was being tried  the attempted murder
of Peterson.  There was no error in admitting
such evidence.

Id. at 640-41.

          Although our decision in McLaughlin

can   be  viewed  as  standing  on  the  same

principle as the decisions in Dulier,  McKee,

and  Braham,  our  holding in  McLaughlin  is

different in one key respect.  In McLaughlin,

we   announced  a  rule  that   governs   all

prosecutions  for felon in  possession  of  a

concealable weapon.  We held that,  in  every

such case, the jurors need to be apprised  of

the   defendants   prior  felony   conviction

because they need to know why they are  being

asked to hold the defendant criminally liable

for possessing a handgun.  Dulier, McKee, and

Braham,  on the other hand, do not stand  for

the proposition that evidence of a defendants

prior  wrongdoing is automatically admissible

whenever  it  is  relevant to  establish  the

nature  or context of the defendants  present

conduct.  Normally, when the government seeks

to  introduce this type of evidence, a  trial

judge  must  still  follow the  directive  of

Evidence  Rule  403, balancing the  probative

force  of  this evidence against  the  danger

that  it  will unfairly prejudice  the  jurys

deliberations.    McLaughlin   dictates   the

result  of  this  Rule  403  balancing  in  a

specific recurring situation.



Evidence of prior DWI convictions in a prosecution for
felony DWI


     McLaughlin dealt with a prosecution for felon

in  possession of a concealable firearm.  In  such

cases,   the  defendants  underlying  conduct   is

unlawful  only because the defendant has  a  prior

felony  conviction.  In McLaughlin, we ruled  that

the jurors need to know about the prior conviction

in order to properly discharge their duties.

          But Ostlund was prosecuted for felony driving

while   intoxicated.   In  such  a   prosecution,   the

defendants  alleged underlying conduct   driving  while

intoxicated   is a crime in itself.10  The  offense  is

elevated to a felony if the defendant has two  or  more

prior convictions for DWI or breath-test refusal within

the preceding five years11, but these prior convictions

do  not  alter  the legality (or, more  precisely,  the

illegality) of the defendants underlying conduct.  Does

it  therefore follow that the jurors need not  be  told

about the defendants prior convictions until after they

have decided whether the defendant is guilty of driving

          while intoxicated on the present occasion?  The answer

is:  it depends.

          We  addressed this topic in Tallent v. State,

951  P.2d  857 (Alaska App. 1997).  Tallent involved  a

prosecution  for felony theft under AS 11.46.130(a)(6).

This  statute,  like  the felony  DWI  statute,  raises

misdemeanor theft to a felony if the offender  has  two

or  more prior misdemeanor theft convictions within the

preceding  five  years.  The question  in  Tallent  was

whether the trial judge should exclude all evidence  of

the defendants prior misdemeanor thefts until after the

jury  has  decided whether the defendant is  guilty  of

theft on the present occasion.

          Tallent argued that a trial judge should have

the power to exclude all evidence of a defendants prior

crimes whenever the existence of the prior crimes  only

enhances the seriousness of the current charge, and the

defendants   conduct   on  the  current   occasion   is

independently  unlawful.12  But we noted  that  such  a

rule would potentially create the same legal problem as

the  bifurcated trial procedure that we disapproved  in

McLaughlin.  That is, it would allow a trial  judge  to

artificially   segregate   certain   aspects   of   the

governments case, thereby keeping the jury ignorant  of

the  true nature and context of the defendants  actions

and thus reducing the jurors to mere factfinders rather

than  allowing  them to serve[] as the vehicle  of  the

community conscience.13

     
     Criminal offenses often require proof of
facts  that can potentially sway the emotions
of  jurors  or lead them to return a  verdict
based   on   improper  considerations.    For
instance,  under AS 11.41.500(a)(3),  unarmed
robbery  becomes robbery in the  first-degree
if  the robber causes serious physical injury
to  any  person.  Depending upon the severity
of  the  injury (if, for example, the  victim
was  maimed or permanently disfigured),  such
     evidence might conceivably lead the jury to
decide  the  case  based on  outrage  at  the
injury  suffered by the victim,  rather  than
demanding that the government meet  its  full
burden  of proof.  Tallents argument  implies
that  a  defendant  who  is  prosecuted   for
first-degree  robbery under 500(a)(3)  should
be  able  to stipulate to the victims  injury
and  then demand that the trial judge (1) bar
the  government from introducing any evidence
of  the injury and (2) withhold the issue  of
serious physical injury from the jury.  Since
robbery is a crime whether or not the  robber
inflicts injury, the defendants infliction of
serious  physical  injury only  enhances  the
seriousness   of   ...  conduct   [that   is]
independently   unlawful.    Under   Tallents
reasoning, the trial judge could confine  the
jury   to   deciding  whether  the  defendant
committed second-degree robbery.  However, we
are  aware  of no legal authority to  support
this outcome.

Tallent, 951 P.2d at 863.

          One could argue that a prosecution for felony theft (as

in Tallent) or a prosecution for felony DWI (as in Ostlunds case)

does not raise these same problems.  For example, in prosecutions

for felony DWI, often the defendants prior convictions for DWI or

breath-test  refusal  are  relevant  only  to  prove  the   prior

convictions element of the offense and are not otherwise relevant

to  explaining  the  nature or context of the defendants  current

misconduct.   In  such instances, if the trial judge  decides  to

keep the jury insulated from evidence of these prior crimes,  the

jurors  can  still  make  an  informed  decision  regarding   the

currently  charged DWI.  Indeed, in such instances,  evidence  of

the  defendants prior crimes would only add an element of  unfair

prejudice  to  the evidentiary mix  the inference from  character

that is forbidden by Evidence Rule 404(b)(1).

          But  not  all  felony DWI prosecutions fit  this  mold.

There will be times when a defendants prior commission of DWI  or

breath-test refusal will be relevant for some valid purpose other

than  merely  to establish the prior convictions element  of  the

offense.   Both  this  court and the Alaska  Supreme  Court  have

encountered  analogous cases.  In Shane v. Rhines, 672  P.2d  895

(Alaska 1983), the supreme court suggested that a defendants past

history  of  driving  while  intoxicated  might  be  relevant  to

establish  the  defendants  mens  rea   to  establish  that   the

defendants  current  act  of drinking  and  driving  amounted  to

reckless indifference to the [safety] of [others].14  This  court

acknowledged the same potential theory of relevance in Abruska v.

State, 705 P.2d 1261 (Alaska App. 1985).  We said:

          
               [Abruska]   contends   that   ...    the
          legislature intended to permit evidence of  a
          persons  past experience when intoxicated  to
          the  extent that it would be relevant to show
          his appreciation of the risks he presented to
          others  when he was intoxicated.  See,  e.g.,
          Shane  v.  Rhines,  672  P.2d  895,  899  n.3
          (Alaska  1983).  We generally agree ...  that
          the  statutory  limitations  on  the  use  of
          evidence  of intoxication to show  diminished
          capacity  ... would not prevent  evidence  by
          either  the  prosecution or the defense  that
          the  persons  past  experiences  while  drunk
          would  or would not have alerted him  to  the
          risks  that  he  presented  to  others   when
          intoxicated.
          
Id. at 1263-64.

          We applied this theory of relevance in Jansen v. State,

764  P.2d  308 (Alaska App. 1988).  The defendant in  Jansen  was

charged with manslaughter and assault for killing one person  and

injuring another when he drove a motor vehicle while intoxicated.

At  trial, Jansen disputed the mens rea of these two crimes  (the

culpable  mental  state  of  recklessness).   To  rebut   Jansens

assertion  that  he  had not acted recklessly,  the  trial  judge

allowed  the  State to introduce evidence that Jansen  had  twice

previously  been  convicted of DWI  thus  tending  to  show  that

Jansen  was subjectively aware of the risk he took when he  drank

alcoholic   beverages  knowing  that  he  would   be   driving.15

    This  court  concluded  that  the  trial  judges  ruling  was

a proper exercise of discretion under Evidence Rule 403.16

          Thus,  a  felony  DWI  defendants prior  offenses  will

sometimes be independently relevant (i.e., relevant for a purpose

other  than  to  prove  the  prior  convictions  element  of  the

offense),  and  sometimes  not.   This  fact,  coupled  with  the

balancing test mandated by Evidence Rule 403, means that  no  one

rule  will fit all cases.  Thus, felony DWI prosecutions are  not

amenable  to  a  uniform  solution like the  one  we  adopted  in

McLaughlin to govern felon in possession cases.

          If   evidence  of  the  defendants  prior   crimes   is

independently  relevant,  and if the  trial  judge  performs  the

balancing  mandated by Rule 403 and concludes  that  evidence  of

these crimes should be admitted, then bifurcation is no longer an

issue.  The judge will have concluded that the jury needs to hear

evidence  of  the prior crimes in order to adequately  understand

the  nature and context of the defendants current conduct,  so  a

unified  trial is the answer.  As we noted in Ross v. State,  the

question of a bifurcated trial arises only in cases ... where the

[defendants]  prior convictions have no relevance other  than  to

prove the prior convictions element of [felony DWI].17

          But  in Ostlunds case, the State concedes that Ostlunds

prior  offenses were not relevant for any purpose other  than  to

establish  the  prior convictions element of the felony  offense.

In these circumstances, what is a trial judge allowed  or obliged

to do?



     Our decision in Ross v. State
     

               In  Ross v. State, 950 P.2d 587 (Alaska  App.

     1997),  we  were asked to decide whether a  felony  DWI

     trial  should be bifurcated, but the bifurcation  issue

     was  posed in a slightly different legal context.   The

     defendant  in  Ross contended that a  defendants  prior

     convictions  were  not an element of the  offense  but,

     rather,  a  factor that enhanced the  penalty  for  the

     crime.18   Under this reasoning, the jury  would  never

     hear  about  the prior convictions  because  sentencing

               decisions are made by the judge.  Ross thus argued that

     evidence  of his prior convictions should be  presented

     to  the judge (if the jury convicted him of the current

     DWI).

               We  rejected this construction of the  felony

     DWI  statute.  Instead, we held that a defendants prior

     convictions are an element of the offense,  an  element

     that  must  be  alleged  in the indictment  and  proved

     beyond a reasonable doubt at trial.19

          At  the same time, we recognized that when  a

defendants  prior  offenses are not  relevant  for  any

purpose  other  than  to  prove the  prior  convictions

element  of  the  offense, the jurys verdict  could  be

unfairly  influenced by this evidence.   In  situations

where evidence of the prior offenses is not needed  for

the   jurys  proper  understanding  of  the  defendants

current  misconduct, evidence of those  prior  offenses

would  serve only to raise the inference prohibited  by

Evidence Rule 404(b)(1)  an inference of the defendants

bad character or propensity to drive while intoxicated.

          But  because the defendants prior convictions

constitute  an element of felony DWI, the  trial  judge

can  not  exclude all evidence of the prior convictions

under Rule 404(b)(1).  The jury must ultimately be made

aware  of  the  convictions so that they  can  reach  a

decision  on each element of the offense.   To  resolve

this difficulty, we recommended a bifurcated trial:

     
     In  a  bifurcated trial, the jury would first
     decide  whether the defendant was  guilty  of
     driving   while  intoxicated  on   the   date
     specified  in  the indictment;  if  the  jury
     found  the  defendant guilty, the  same  jury
     would then decide the issue of the defendants
     prior   convictions.   This  solution   would
     preserve  both  parties  right  to   a   jury
     determination  of all issues,  while  at  the
     same  time avoiding the potential for  unfair
     prejudice  that would otherwise be  posed  by
     evidence of the defendants prior convictions.
     Moreover,  this solution works  equally  well
     regardless   of  whether  the  defendant   is
     willing to stipulate to the prior convictions
     or wishes to contest them.
     
Ross, 950 P.2d at 592.



Ostlunds case


          The trial judge in Ostlunds case was aware of

our  decision  in Ross, but she noted (correctly)  that

our  recommendation  for a bifurcated  trial  in  these

situations  was  just  that   a  recommendation.    The

precise  issue raised in Ross was whether a  defendants

prior  convictions are an element of felony  DWI.   Our

precise holding was that the prior convictions  are  an

element of felony DWI, and thus the jury (not the trial

judge) must decide this element.  Because the issue  of

a  bifurcated trial was not directly litigated in Ross,

we   phrased  our  comments  on  this  subject   as   a

recommendation rather than a mandate.  And, because our

recommendation concerning a bifurcated trial  was  only

dictum,  Ostlunds  trial judge rightly  concluded  that

this recommendation did not bind her.

          But  Ostlunds  case presents the  bifurcation

issue   directly.   In  the  superior  court,   Ostlund

expressly asked his trial judge to bifurcate the  trial

(in  the  manner we recommended in Ross), and  in  this

appeal  he directly challenges the trial judges refusal

to do so.  We therefore must formulate a rule to govern

these cases.

          For  the reasons explained above, I reach the

following conclusions:

          When a defendant is tried for felony DWI, and

when the defendants previous offenses have no relevance

other  than  to prove the prior convictions element  of

the  offense, a trial judge should bifurcate the  trial

so  that the jurys deliberations on the current DWI are

not  unfairly prejudiced by evidence of the  defendants

prior   similar   crimes   evidence  that,   in   other

circumstances,  would  be  barred  by   Evidence   Rule

404(b)(1).

          If   the  defendants  previous  offenses  are

relevant for some other purpose, and if the trial judge

concludes  (under Evidence Rule 403) that the probative

value  of  this  evidence  is  not  outweighed  by  its

potential  for unfair prejudice, then the trial  should

not  be  bifurcated   for, in these circumstances,  the

jury  should be allowed to consider all of the relevant

evidence as a whole.

          If  the answer is in doubt  if it is unclear,

when   the  trial  begins,  whether  evidence  of   the

defendants  previous crimes will be  admissible  for  a

purpose  other  than  to  prove the  prior  convictions

element  then a judge should err on the side of caution

and  initially bifurcate the trial.  If the judge later

decides  that  the defendants offenses  are  admissible

for  another purpose, it should be relatively  easy  to

convert  the bifurcated trial to a unified trial   much

easier  than trying to convert a unified trial  into  a

bifurcated one.

          In  Ostlunds  case, his prior  offenses  were

relevant  for only one purpose  to establish the  prior

convictions  element of the offense.  Accordingly,  the

trial judge should have bifurcated Ostlunds trial  when

he  asked  for  this procedure.  I therefore  join  the

decision to reverse Ostlunds convictions.



_______________________________
     1 AS 28.35.030(a), (n).

     2 AS 28.15.291(a).

3    AS   28.35.030(n),(o)(4).    Alaska   Statute   28.35.030(n)
states:  A person is guilty of a class C felony if the person  is
convicted  of  driving while intoxicated and has been  previously
convicted  two or more times within the five years preceding  the
date of the present offense.

     4 860 P.2d 1270 (Alaska App. 1993).

5 Id. at 1272 (footnote omitted).

     6 Id. at 1271.

     7 Id. at 1272.

     8 Id.

     9 Id. at 1278.

     10   Id. at 1273.

     11   Id.

     12   Id. at 1273-74.

13   Id. at 1274.

     14   Id. at 1276-77.

     15   Id. at 1278 n.15 (citations omitted).

     16   950 P.2d 587 (Alaska App. 1997).

     17   Id. at 591.

     18   Id. at 589-90.

19   Id. at 590.

     20   Id. at 591-92.

     21   Id. at 592.

22     Peters   v.  State,  692  S.W.2d  243,  245  (Ark.   1985)
(requiring a bifurcated trial); Barker v. State, 916 S.W.2d  775,
776  (Ark.  App. 1996); State v. Rodriguez, 575 So.2d 1262,  1266
(Fla. 1991), modified in part by State v. Harbaugh, 754 So.2d 691
(Fla. 2000) (requiring a bifurcated trial); State v. Wiggins, 536
P.2d  1116,  1118  (Idaho 1975) (approving use  of  a  bifurcated
trial);  State v. Berkelman, 355 N.W.2d 394, 396-97 (Minn.  1984)
(requiring trial court to accept defendants offer to stipulate to
prior DWI offenses if the court finds unfair prejudice under Rule
403);  State  v.  Saul, 434 N.W.2d 572, 574-75  (N.D.  1989)  (if
defendant offers to stipulate to prior convictions, defendant  is
only  tried  on  underlying  DWI and prior  convictions  are  not
disclosed to jury); State v. Winters, 578 P.2d 439, 441 (Or. App.
1978)  (statute requires court to accept defendants timely  offer
to   stipulate   regardless  of  states  consent  and   prohibits
disclosure  of  prior convictions to jury); State v.  White,  525
S.E.2d  261,  262-63  (S.C. App. 1999); State  v.  Anderson,  458
S.E.2d 56, 59 n.2 (S.C. App. 1995) (statute prevents trial  court
from  disclosing stipulation of prior conviction to jury);  State
v.  Florez, 777 P.2d 452, 459 (Utah 1989) (in first-degree murder
trial with prior conviction as element of the offense, bifurcated
trial  required); State v. Nichols, 541 S.E.2d 310, 322-23 (W.Va.
1999)  (trial  court  required  to  accept  defendants  offer  to
stipulate  regardless  of states consent, and  prior  convictions
cannot  be disclosed to jury; trial court should bifurcate  trial
if  defendants  challenge of prior convictions  is  meritorious);
State  v.  Alexander, 571 N.W.2d 662, 664 & 672 (Wis.  1997)  (if
defendant  stipulates to prior convictions,  trial  court  cannot
disclose  them  to jury).  But see State v. Geschwind,  666  P.2d
460,  462  (Ariz. 1983); State v. Superior Court,  863  P.2d  906
(Ariz.  App. 1993); State ex rel. Romley v. Superior  Court,  985
P.2d  494, 496-97 (Ariz. 1999) (requiring a unitary trial on  all
elements, including element of prior DWI convictions); Weaver  v.
State,  713 So.2d 860, 865 (Miss. 1997); Nicholson v. State,  761
So.2d  924, 928-29 (Miss. App. 2000) (same); State v. Lugar,  734
So.2d  14, 15 (La. App. 1999) (same); Tamez v. State, 111  S.W.3d
198, 202 (Tex. Crim. App. 2000) (if defendant stipulates to prior
convictions state may read existence of prior convictions as part
of  indictment at beginning of trial but may not present evidence
of prior convictions during trial).

     23    State  v.  Harbaugh, 754 So.2d 691,  693  (Fla.  2000)
(original  citation and quotation marks omitted); see also  State
v.  Nichols, 541 S.E.2d 310, 322 n.20 & 324 (W.Va. 1999) (quoting
our decision in Ross with approval).

     24   585 P.2d 553 (Alaska 1978).

     25   Id. at 557-58.

     26   760 P.2d 1039 (Alaska App. 1988).

     27   Id. at 1044-45.

     1 860 P.2d 1270 (Alaska App. 1993).

     2 See id. at 1272.

3 See Smithart v. State, 946 P.2d 1264, 1270-71 (Alaska App.
1997),  reversed  on  other grounds, 988  P.2d  583  (Alaska
1999).

4 AS 11.61.200(a)(1).

     5 Id. at 1276.

     6 Id. at 1277.

     7  The first paragraph of this passage is quoted from United
States v. Gilliam, 994 F.2d 97, 101 (2nd Cir. 1993).

8 McLaughlin, 860 P.2d at 1277.

9 See id. at 1059-1060.

10   See AS 28.35.030(a).

11   See AS 28.35.030(n).

12   Id. at 863.

13   McLaughlin, 860 P.2d at 1276.

     14   Id. at 899 n.3.

     15   See id. at 310-11.

     16   See id. at 312.

17   950 P.2d 587, 591 (Alaska App. 1997).

     18   See id. at 589-590.

19   Id. at 590-91.