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Pease v. State (9/27/2002) ap-1830

Pease v. State (9/27/2002) ap-1830

                             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


KEVIN W. PEASE,               )
                              )            Court of Appeals No. A-
7635
                                             Appellant,         )
Trial Court No. 4FA-S97-3164 CR
                              )
                  v.          )
                              )
STATE OF ALASKA,              )
                              )
                                      Appellee.   )
                              )
                              )
MARVIN L. ROBERTS,            )
                              )                 Court  of Appeals
No. A-7638
                                             Appellant,         )
Trial Court No. 4FA-S97-3163 CR
                              )
                  v.          )                           O P I N
I O N
                              )
STATE OF ALASKA,              )
                              )
                                             Appellee.          )
[No. 1830 - September 27, 2002]
                              )


          Appeal  from the Superior Court, Fourth  Judi
          cial District, Fairbanks, Ben J. Esch, Judge.

          Appearances:   Lori M. Bodwell, Law Office of
          Lori  M.  Bodwell, and Dick  L.  Madson,  Law
          Office  of  Dick  L. Madson,  Fairbanks,  for
          Appellant.   W.  H.  Hawley,  Jr.,  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.


          The  state  charged Marvin L. Roberts, Kevin W.  Pease,

Eugene  G. Vent, and George C. Frese with the assault and robbery

of Franklin Dayton and the robbery, sexual assault, and murder of

a  fifteen-year-old juvenile, J.H.   These crimes occurred during

the  early morning hours of October 11, 1997.  Pease and  Roberts

were tried together.  A jury convicted both defendants of second-

degree  assault of Dayton and of first-degree robbery and second-

degree  murder of J.H.  Frese and Vent were convicted in separate

trials and their appeals are pending before this court.1

          Superior Court Judge Ben J. Esch sentenced Pease  to  a

total  term  of seventy-five years with fifteen years  suspended.

He  sentenced Roberts to a total term of forty-two years with ten

years suspended.  Pease and Roberts raise several issues in their

appeal  to this court.  We affirm their convictions but remand  a

portion of their sentences for reconsideration.



          Factual Background
                    The   assault   and   robbery   of   Franklin
                    Dayton

          Arlo  Olson testified that he witnessed the assault  of
Franklin Dayton.  Olson attended a wedding reception, which began
on  the  night  of  October  10, 1997,  at  the  Eagles  Hall  in
Fairbanks.  According to Olsons testimony, he was standing on the
front  steps  of the Eagles Hall between 12:30 and 1:00  a.m.  on
October  11, 1997, when Roberts, Pease, Vent, and Frese drove  up
in  Robertss blue, two-door car.   Frese asked Olson if he wanted
to get high.  Olson declined, and the four drove away.
          Dayton also attended the wedding celebration. According
to Daytons testimony, at about 1 a.m. on October 11, after having
several  drinks, he left the reception and walked  toward  Tommys
Elbow  Room.   As Dayton was walking, a car stopped  behind  him.
Someone from the car tripped Dayton, pushed him down, stepped  on
          his hand, kicked him in the ribs, and took his money.  Someone
told Dayton not to look back; Dayton did not recognize the voice.
Dayton thought the robbers said something about having a gun  but
was  not sure.  He heard two doors slam after the attackers  took
his  money and left.  He thought about four people robbed him and
they drove a tan car.  He did not recognize any of them.
          Dayton  returned  to  the Eagles  Hall.   He  told  his
sisters, Katherine Quirk and Vaughn Reitan, that the four robbers
had  put a gun to his head and threatened that he wasnt going  to
be  the only one.  He told them he was thrown face-down and could
not  identify any of the four assailants.  Daytons sister-in-law,
Susan Paskvan, called 911 at 1:35 a.m., and his two sisters  took
him to the hospital.
          Olson testified that about half an hour after he talked
with Vent, Frese, Roberts, and Pease, he watched the four assault
Dayton  down the street from the front steps of the Eagles  Hall.
He  saw Pease push Dayton to the ground.  Frese, Pease, Vent, and
Roberts then all kicked Dayton.  One of the four men yelled, Give
me  your fucking money, bitch, and Dayton handed something to one
of  the  four.   Olson  watched the four men  run  to  and  enter
Robertss car.
          The accuracy of Olsons testimony was seriously disputed
at trial.  Olson admitted that he had drunk a considerable amount
on  the  evening in question and had smoked marijuana earlier  in
the  day.   He testified that the fight only lasted about  thirty
seconds,  that  the assailants had their backs to  him  half  the
time, and that he really only got a look at them while they  were
running  back  to  their  car.   He estimated  that  the  assault
occurred  about  400 feet away from him.  The  defense  presented
evidence that the distance was greater than that.
          But the state presented evidence that Olson was able to
identify  the defendants.  Not only had he seen them  earlier  in
the  evening,  but Olson and Vent had been friends  since  Olsons
junior  year  in high school.  Olson met Frese in the  summer  of
1997,  had  been to his house, had talked to him frequently,  and
considered  him a friend.  Olson also identified Roberts,  Pease,
and Robertss car at trial.

                    The murder and robbery of J.H.
          J.H., age fifteen, met his mother at her job during the
afternoon of October 10, borrowed some money, and put it  in  his
wallet.  He spent the evening of October 10 with Chris Stone at a
Fairbanks  residence where a third friend was  babysitting.   The
boys took some prescription drugs during the evening to get high.
After  consuming some of the pills, J.H. fell out of a chair  and
had  a  seizure.   J.H. and Stone left the babysitting  residence
after midnight. At about 1:15 a.m., J.H. and Stone parted company
near downtown Fairbanks, and J.H. started walking home alone.
          At  1:28 a.m. on October 11, Melanie Durham, a resident
of the Fairbanks WICCA shelter, who had been watching TV, stepped
outside  to  have  a cigarette.  Minutes later,  Durham  heard  a
really  horrendous [loud] smack, smack.  The smacks were followed
by  someone  calling, Help me, help me, who then was  quieted  by
more smacks.  She heard a highly intoxicated, slurred, deep voice
with  a  Native accent growl something indistinguishable.  Durham
then heard more
          smacks, really just it was horrendous.  . . .
          [T]he  way  it sounded was like whatever  was
          hitting  this  kid,  . . .  it  was  wrapping
          around, thats how bad it sounded.  And  then,
          I heard some more, then a[n] angry voice, and
          I  realized  it  was  really  bad,  and  that
          whoever   was   getting  hit   wasnt   saying
          anything.

The  sounds  were  coming  from the  intersection  of  Ninth  and
Barnett, half a block from the shelter, but Durhams view  of  the
intersection was obstructed.
          Sometime before 2:00 a.m., Stone used a phone at  Carrs
Foodland.   While  Stone  was using the  phone,  Pease,  standing
nearby, stared at him to the point that Stone felt uncomfortable.
Stone saw a car parked nearby that looked like Robertss car.   No
one  was  sitting in the drivers seat, but the car was  otherwise
full.
          At about 2:45 a.m., citizens driving on Barnette Street
spotted  J.H.  lying  partly on the  street  and  partly  on  the
sidewalk at Ninth and Barnette.  J.H. was badly beaten, his pants
were  down  around  his  knees, and  his  personal  effects  were
scattered  in  the street.  One of the citizens called  911,  and
paramedics responded and took J.H. to the hospital.
          The  width and distance between tire marks observed  at
the  scene  were  similar to the width and distance  between  the
tires on Robertss car.
          A  sexual-assault nurse-examiner, Diane Hill,  examined
J.H.  at  the hospital.  Hill observed that J.H.s anal verge  was
swollen  and  red, and she saw minute tears all around  his  anal
verge.   Hill  also observed a large, deep, long  tear  on  J.H.s
anus.  Using an anoscope, she found two abrasions on the wall  of
the rectum three or four inches inside the anal verge.
          About   noon,  that  day,  October  11,  Frese   sought
treatment for an injured foot at the Fairbanks Memorial  Hospital
emergency  room.   Frese said that he had  injured  his  foot  by
kicking  someone during a fight downtown the night  before.   The
police  obtained  the hiking boots Frese was wearing  during  the
fight.   Fairbanks  Police Lieutenant David  Kendrick  and  Julie
Klaker,  a  nurse,  compared the tread of Freses  shoe  with  the
injury  on  the  left  side of J.H.s head.   Kendrick  found  the
similarity  between  the lug pattern on  the  shoe  and  the  lug
imprints  on J.H.s face striking.  Klaker said the print  on  the
bottom of the shoe matched up to the print on J.H.s face.
          J.H.  died  on October 12.  Dr. Franc Fallico performed
the  autopsy.   During  the  external  examination,  Dr.  Fallico
observed  multiple  separate injuries on  J.H.s  head  and  body.
During  the  internal examination, Dr. Fallico  found  blood  and
blood  clots on the surface of the brain and hemorrhages  in  the
mid-brain; he attributed J.H.s death to blunt-force trauma to his
head.   He  found  two scratches inside J.H.s  colon  about  four
inches from his anus.  Dr. Fallico found similarities between the
tread pattern on Freses shoes and the pattern on J.H.s head.   At
trial,  however,  the  defense  presented  an  expert,  Dr.  John
Thornton,  who  concluded that the shoes the police  seized  from
Frese did not make the prints on J.H.s face.
          Pease  told  the police that he had not  seen  Roberts,
Frese,  or  Vent on the night of October 10-11, claiming  he  had
been  with  his girlfriend, Jessica Lundeen.  But Lundeen  denied
having  seen  Pease at any time during the evening and  night  of
October 10-11.  Pease presented an alibi defense based on several
witnesses who testified he had been at two parties on the evening
in question.
          The  state also presented evidence from two people  who
were  in  jail  with Pease prior to trial.  According  to  Angela
Harman,  she  asked Pease why he had murdered J.H.  In  response,
Pease  stated  that, [I] did it for the punks  money.   A  second
inmate,  John Heffle, asked Pease if he had committed the murder.
Pease responded, I was fucked up, and it was bad.
          Roberts  also  presented  an alibi  defense  at  trial.
Several witnesses testified that he was at the Eagles Hall at the
time the assaults occurred.
          The  jury  convicted Pease and Roberts of second-degree
assault  of  Dayton  and first-degree robbery  and  second-degree
murder of J.H.  This appeal followed.

          Whether Judge Steinkruger erred in failing to
          sever  for trial the charges relating to  the
          assault  of Dayton from the charges  relating
          to the robbery and murder of J.H.

          Frese  filed a motion to sever the charges relating  to
the  assault  on Dayton from the charges relating to the  robbery
and  murder of J.H.  He argued that the jury might improperly use
the  evidence of the Dayton assault to convict him of the robbery
and  murder  of J.H.  The state opposed the motion, and  Superior
Court  Judge  Niesje J. Steinkruger denied the  motion  to  sever
without  discussion.  After Judge Steinkruger denied the  motion,
Pease moved without opposition to join Freses motion.  The record
does not reflect that Judge Steinkruger took any action on Peases
application to join the severance motion.
          Pease and Roberts concede that it was permissible under
the  Alaska  Criminal Rules to join the Dayton and J.H.  charges,
but  they argue that the evidence against them in the Dayton case
was  much  stronger than in the J.H. case.  They claim  that  the
evidence in the Dayton case improperly bolstered the J.H. case.
          The  state  argues  that Roberts waived  the  severance
issue by not moving to sever before trial.  Roberts contends that
an  objection made by one codefendant is deemed to have been made
by  all  codefendants  absent  an objection.   But  generally,  a
defendant  may  not  rely on a codefendants motion  or  objection
absent  a special agreement with the trial court.2  And  we  have
not found an agreement on the record that would allow Roberts  to
rely  on  Peases  motion.   But we need not  resolve  this  issue
because,  as we explain below, we conclude that Judge Steinkruger
did not err in denying the motion for severance.
          The  state argues that Pease waived his severance claim
because he did not renew it at trial.  But we stated in Mathis v.
State3  that  a  defendant does not need to renew  a  motion  for
severance  at  trial if the trial court clearly and unequivocally
rules  on  the claim  before trial.4  Of course, if circumstances
arise  during  trial that undermine the judges  earlier  decision
denying  severance, the defendant has a duty to renew the  motion
for  severance during trial to allow the trial judge to  consider
the actual circumstances as they arise at trial.5   Because Judge
Steinkruger  decided the motion before trial and the  motion  was
not  renewed,  we conclude that we should review  the  defendants
claim  of  prejudice based on the information presented to  Judge
Steinkruger before trial.
          Once joined, a motion to sever offenses encompasses two
separate  inquiries.6   First, the  trial  court  must  determine
whether  the  charged offenses are so related as to make  joinder
proper.7  Second, the court must determine whether joinder of the
offenses   for  trial  would  unduly  prejudice  the  defendant.8
Because  the  defendants have conceded proper joinder,  the  only
issue  before  us  is whether Judge Steinkrugers decision  unduly
prejudiced the defendants.
          This court will only overturn a trial courts denial  of
a  motion  to  sever if the defendant can show both an  abuse  of
discretion  and  actual prejudice.9  The first step  in  deciding
whether Judge Steinkruger erred in denying the motion to sever is
to  determine whether Judge Steinkruger could conclude  that  the
evidence  of  the  crimes  would  be  cross-admissible  if  tried
separately.10  If the evidence would be cross-admissible if tried
          separately, the defendant is hard-pressed to show actual
prejudice  from  the failure to sever, since the  evidence  would
have been admitted even if the judge had granted separate trials.
If  the  trial  court  determines  the  evidence  is  not  cross-
admissible,   the  second  step  is  to  decide   whether   Judge
Steinkruger  abused her discretion when she found the  defendants
would  not  suffer  actual prejudice from having  this  otherwise
inadmissible evidence admitted at the joint trial.
          In  the present case, the pretrial motion claimed  that
the  evidence  of  the  assault on  Dayton  would  prejudice  the
defendants  by  influencing  the jury  in  deciding  whether  the
defendants  robbed  and murdered J.H.  But  if  evidence  of  the
assault  on  Dayton would have been admitted in a separate  trial
involving  whether the defendants robbed and murdered J.H.,  then
the  defendants did not suffer any prejudice by its admission  at
the  joint  trial.  As we explain below, we conclude  that  Judge
Steinkruger did not err in determining that the evidence  of  the
earlier  assault  on  Dayton  would have  been  admissible  in  a
separate  trial  on  the charges that the defendants  robbed  and
murdered J.H.
          The   facts   alleged   in  the   severance   pleadings
established that the assault on Dayton and the robbery and murder
of  J.H. occurred within forty-five minutes of each other.  Olson
saw  Roberts, Pease, Vent, and Frese assault Dayton.  Dayton  was
attacked by several people who beat and robbed him while  he  was
walking alone in downtown Fairbanks.  The evidence suggested that
J.H. had undergone a similar, but more vicious, attack.
          We  have  previously approved the admission of evidence
that  a  defendant  committed a related offense  within  a  short
period  of  time of another offense.  In Hoffman v.  State,11  in
defense  of  a  sexual assault charge, Hoffman argued  consent.12
This  court  approved  admission of  evidence  that  Hoffman  had
violently sexually assaulted a different woman just prior to  his
charged assault.  We reasoned that the prior assault was relevant
to  the charged offense because it could be inferred that Hoffman
was  in  the same emotional state during both encounters.13    In
Hoffman, we relied on Lerchenstein v. State,14 where we held that
          Evidence Rule 404(b) allowed the introduction of evidence that a
murder  defendant had been angry and combative . . .  immediately
prior to the [homicide].15
          In  Miller v. State,16 we held that Millers robbery and
burglary  at  a  near-by trailer less than  an  hour  before  the
charged murder were directly relevant to establish Millers  state
of  mind at the time of the murder, to show that he was acting in
concert with [his codefendant], and to prove his capacity to form
the  specific intent required for murder.17  Likewise, in  Ciervo
v.  State,18  we approved the states evidence of a  confrontation
between  Ciervo and another individual five hours  prior  to  the
charged shooting.19
          Hoffman,  Ciervo, and Miller support the  admissibility
of the evidence of the Dayton incident at a separate trial on the
J.H. charges.20  Because the crimes were committed within a close
temporal   and  physical  proximity  to  each  other,  apparently
involved the same perpetrators, and consisted of similar  attacks
on the victims, the evidence of each crime would have been cross-
admissible  under  Rule  404(b)(1) to prove  state  of  mind  and
sequence of events.
          The  defendants argue that even though the evidence  of
the Dayton offense would have been admissible under Evidence Rule
404(b), Rule 403 would have prevented it from being introduced at
a  separate trial because the case against the defendants on  the
robbery  and murder of J.H. was weak.  They argue that they  were
prejudiced by admission of the stronger Dayton assault  evidence,
and the jury might have improperly used that  evidence to convict
them  of  the  robbery and murder of J.H.   In  our  view,  Judge
Steinkruger properly could determine that the evidence  that  the
defendants were together during the assault and robbery of Dayton
was  substantial evidence that the defendants had, only  a  short
time  later, committed a similar assault on J.H. that  ultimately
led  to  his death.  The superior court properly could  determine
that admission of this evidence was not unduly prejudicial.21
          Because the evidence of the Dayton incident would  have
been  admissible at a separate trial on the J.H. incident,  Judge
Steinkruger  did not err under Criminal Rule 14  in  denying  the
          motion to sever the charges.

          Whether Pease and Roberts should be granted a
          new  trial  based upon Judge Eschs  ex  parte
          interview of a juror

          During  trial, Judge Esch informed the parties  that  a
juror had approached him, wanting to talk privately.  He told the
parties he would meet with the juror on the record to see what he
wanted and then talk to the parties.
          He  met with the juror, Rhett Buchanan, who said he was
concerned   about   the  defense  attorneys  conduct.    Buchanan
mentioned Peases attorney, Lori Bodwell, but primarily cited  two
incidents  involving Robertss attorney, Dick  Madson,  where  the
juror thought Madsons conduct had been inappropriate.  Judge Esch
told Buchanan he would talk to the attorneys and ask them to  act
more  professionally.  Buchanan said that would be fine, and  the
conversation ended.
          When the court reconvened after the weekend, Judge Esch
informed the parties that his conversation with Buchanan had  not
been  picked up by the tape and therefore there was no record  of
the  conversation.   He  told  the attorneys  that  Buchanan  was
concerned  with  Madsons conduct and gave the specific  examples.
Judge  Esch told the parties that Buchanan had indicated he would
not hold his concerns against Roberts.  The parties did not raise
any  objections  about Judge Eschs meeting with Buchanan  or  ask
Judge  Esch  to  take any additional action.  Contrary  to  Judge
Eschs   understanding,  his  conversation   with   Buchanan   was
successfully recorded.
          Roberts  and  Pease  first  contend  that  Judge   Esch
violated  their  right  to  be  present  by  resolving  Buchanans
concerns  without consulting them.  They also assert that  before
talking to Buchanan, Judge Esch told them only that he was  going
to  listen  to  Buchanans concerns.  They argue  that  they  were
misled  because  Judge  Esch actually  had  a  conversation  with
Buchanan.  Furthermore, having reviewed the tape recording,  they
contend  that  Judge  Esch  made significant  omissions  in  what
Buchanan  said.   In the first place, Judge Esch never  mentioned
that  Buchanan  indicated  he had some  concerns  about  Bodwell,
Peases attorney.   Second, Buchanan never said that he would  not
hold  Madsons  behavior against Roberts.   They point  out  that,
because  Judge  Esch  informed them that  the  conversation  with
Buchanan  had  not  been  recorded  successfully,  they  had   no
opportunity  to review the courts actions or object  until  after
the transcript revealed the full conversation.
          In  general, criminal defendants have the right  to  be
present  at  every  stage  of  the  proceedings  following  their
indictment.22   The  right  to  be  present  is  rooted  in   the
defendants constitutional right to confront the witnesses against
him.23   And, it is protected by the guarantee of due process  in
some  situations where the defendant is not actually  confronting
witnesses or evidence against him.24
          The  defendants  right to be present  extends
          not  only  to those proceedings in which  the
          defendant  confronts  adverse  witnesses   or
          evidence   but   also  to  any  trial-related
          proceeding at which defendants presence has a
          reasonably substantial relation to defendants
          ability to defend against the criminal charge
          that   is,  to  any  stage  of  the  criminal
          proceeding that is critical to its outcome if
          [the defendants] presence would contribute to
          the fairness of the procedure.25

          If a defendant has a constitutional right to be present
at a proceeding, the defendant must personally waive his right to
be  present or expressly consent to allow the proceeding to occur
outside his presence.26
          While  a defendant has the right to be present at every
stage of the trial where his presence could have an impact on the
decision process, at least under federal law, he does not have an
absolute  right  to be present at every communication  between  a
judge  and  juror.27   [T]he  mere  occurrence  of  an  ex  parte
conversation  between  a  trial  judge  and  a  juror  does   not
constitute  a  deprivation  of any constitutional  right.28   For
instance, in United States v. Olano,29 the Ninth Circuit held the
trial  court  did  not violate the United States Constitution  by
meeting with a juror outside of the presence of the defendants.30
There,  midtrial, a juror informed the trial judge of a  possible
          conflict that might reflect on the jurors ability to be
impartial.   The judge consulted the parties about  whether  they
wanted  her to speak with the juror alone in chambers.31  Counsel
for  one  codefendant  and the prosecutor  consented;  the  other
attorneys did not object.32  The circuit court held the right  to
be present had been waived.
Alaska  case  law  prohibits ex parte communication  between  the
judge  and  jury about evidence once deliberations have  begun.33
Additionally,  it  is  error for a judge to receive  the  verdict
outside  the  presence  of  the defendant  (even  if  counsel  is
present).
_______________________________
     1 See Frese v. State, Court of Appeals File No. A-7640; Vent
v. State, Court of Appeals File No. A-7647.

2  See,  e.g.,  State v. Carriker, 238 S.E.2d  678  (S.C.  1977);
People  v. Lopez, 158 A.D.2d 623, 623 (N.Y. App. Div. 1990)  (The
objections  made  by  the  codefendants  did  not  preserve   the
allegations of error for this defendant.); Martinez v. State, 833
S.W.2d  188, 191 (Tex. App. 1992) (defendant may not rely on  the
objection  of his codefendant to preserve error unless  defendant
has  adopted the objection on the record); see also Owens-Corning
Fiberglas  Corp. v. Malone, 916 S.W.2d 551, 556 (Tex. App.  1996)
(defendant  in  multi-defendant products liability  action  could
rely on evidentiary objections made by codefendants counsel where
trial  court  apparently  required  and  defendants  agreed  that
objection  made  by one defendant would be considered  as  having
been  made  on  behalf of all defendants and plaintiffs  did  not
object to such arrangement).

     3 778 P.2d 1161 (Alaska App. 1989).

     4 Id. at 1167 n.2.

     5  See  Petersen  v. State, 838 P.2d 812, 816  (Alaska  App.
1992).

     6  See  Ashley v. State, 6 P.3d 738, 741 (Alaska App. 2000);
Alaska R. Crim. P. 8; Alaska R. Crim. P. 14.

     7 See Ashley, 6 P.3d at 741; Alaska R. Crim. P. 8.

     8 See Ashley, 6 P.3d at 741; Alaska R. Crim. P. 14.

     9  See  Catlett  v. State, 585 P.2d 553, 556 (Alaska  1978);
Cleveland v. State, 538 P.2d 1006, 1008-09 (Alaska 1978).

     10    See Mathis v. State, 778 P.2d 1161, 1167 (Alaska  App.
1989).

11   950 P.2d 141 (Alaska App. 1997).

     12   Id. at 147.

     13   Id.

     14    697  P.2d 312 (Alaska App. 1985), affirmed on  appeal,
726 P.2d 546 (Alaska 1986).

15     Hoffman,  950  P.2d  at  147  (quoting  Lerchenstein,  697
P.2d at 319).

     16   778 P.2d 593 (Alaska App. 1989).

     17   Id. at 596-97.

     18    756  P.2d 907 (Alaska App. 1988), overruled  on  other
grounds  by  Swain  v. State, 817 P.2d 927, 931-34  (Alaska  App.
1991).

     19   Id. at 911.

     20    See  also Vessell v. State, 624 P.2d 275, 278  (Alaska
1978)  (defendants  conduct at a store minutes  after  the  armed
robbery  of another store for which he was accused was admissible
to  show  that  he was the same man who robbed the first  store);
Kelly  v. State, 663 P.2d 967, 972 (Alaska App. 1983) (bad checks
written  by defendant near time he wrote the bad check for  which
he  was prosecuted were admissible to prove intent and absence of
mistake); Davidson v. State, 642 P.2d 1383, 1390 n.8 (Alaska App.
1982) (upholding trial courts refusal to sever charge based on an
assault  occurring six days before other charged  murder  because
defendants  actions  could be viewed as a  continuing  course  of
conduct  and since the assault charge would have been  admissible
in the murder trial to prove criminal intent or motive or to show
a common scheme or plan even if the charges had been severed).

     21   A.R.E. 403.

22    See  Alaska  R.  Crim.  P. 38(a);  Faretta  v.  California,
422  U.S. 806, 820 n.15, 95 S.Ct. 2525, 2533 n.15, 45 L.Ed.2d 562
(1975)  (A defendant has a constitutional right to be present  at
all  stages  of  the trial where his absence might frustrate  the
fairness of the proceedings.).

     23    See U.S. Const. amends. VI, XIV; Alaska Const. art. 1,
1,  7; Dixon v. State, 605 P.2d 882, 884 n.3 (Alaska 1980); Henry
v. State, 861 P.2d 582, 592 (Alaska App. 1993).

     24    United States v. Gagnon, 470 U.S. 522, 526, 105  S.Ct.
1482, 1484, 84 L.E.2d 486 (1985).

     25    Malloy v. State, 1 P.3d 1266, 1271 (Alaska App. 2000),
overruled  on other grounds, 46 P.3d 949 (Alaska 2002) (citations
omitted).

     26    See  Dixon,  605 P.2d at 885 n.8 ([T]he constitution[]
mandate[s] that the right [to be present] be personally exercised
by the defendant or with his express consent.).

     27    See Gagnon, 470 U.S. at 526, 105 S.Ct. at 1484; Alaska
R. Crim. P. 38.

     28    Gagnon,  470 U.S. at 526, 105 S.Ct. at  1484  (quoting
Rushen  v.  Spain, 464 U.S. 114, 125-26, 104 S.Ct. 453,  459,  78
L.Ed.2d 267 (1983) (Stevens, J., concurring)).

     29   62 F.3d 1180 (9th Cir. 1995).

     30   Id. at 1190-91.

     31   Id.

     32   Id. at 1190.

     33    See  Cox  v.  State, 575 P.2d 297, 300  (Alaska  1978)
(holding  judges ex parte communication through bailiff regarding
jurys  playback request was constitutional error); Richardson  v.
State,  579  P.2d  at  1372,  1374  (Alaska  1978)  (playback  of
testimony  without  presence  of parties  or  judge  and  without
notifying  parties was error); State v. Hannagan, 559 P.2d  1059,
1065  (Alaska  1977) (error to permit playback  of  testimony  in
defendants absence without express waiver by defendant).