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Cathey v. State (12/13/2002) ap-1845

Cathey v. State (12/13/2002) ap-1845

                             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


WYNTER JAI CATHEY,            )
                              )              Court of Appeals No.
A-8092
                                             Appellant,         )
Trial Court No. 3AN-99-4497 Cr
                              )
                  v.          )
                              )                       O  P  I   N
I  O  N
STATE OF ALASKA,              )
                              )
                                      Appellee.   )          [No.
1845    December 13, 2002]
                              )


          Appeal  from the Superior Court,  Third  Judi
          cial District, Anchorage, Larry D. Card,  and
          Milton M. Souter, Judges.

          Appearances:   Gayle  Brown,  Anchorage,  for
          Appellant.    James   L.  Hanley,   Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Bruce  M. Botelho, Attorney General,  Juneau,
          for Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.


          Wynter  Jai  Cathey and an accomplice, Faatafa  Afusia,

broke into an apartment and robbed the two residents at gunpoint.

Based  on  this  conduct,  Cathey was convicted  of  first-degree

burglary,  first-degree robbery, and two counts  of  third-degree

assault.1  He now appeals his convictions.

          Cathey  attacks  his indictment by asserting  that  the

          prosecutor knowingly used perjured testimony to obtain the

indictment, failed to present evidence suggesting that no gun was

used  in  the robbery, and misinstructed the grand jury regarding

the  standard of proof required for an indictment.   Cathey  also

contends  that  the  evidence presented to  the  grand  jury  was

insufficient  to support his indictment for assault  because  the

evidence  suggested  that at least one of  the  victims  was  not

afraid of the robbers.

          Finally, Cathey contends that he was entitled to a  new

trial  based  on newly discovered evidence:  the testimony  of  a

witness who (Cathey asserts) provided him with an alibi.

          For  the reasons explained here, we conclude that  none

of Catheys arguments has legal merit, and we therefore affirm his

convictions.



     Underlying facts
     

               Justin Heinzeroth and Kimberlee Johnson  were

     napping  in  their apartment on Memorial Day  afternoon

     when  two  men kicked the front door open.   Heinzeroth

     was  asleep in the front room, so the robbers  saw  him

     first.  One of the men (Cathey) pointed a large-caliber

     revolver at Heinzeroth and demanded money.

          Johnson  was in the bedroom; she was awakened

by  the  crash  of  the  door and Heinzeroths  screams.

Johnson peeked into the front room and saw one  of  the

intruders pointing a gun at Heinzeroth.  She then  went

to  the bedroom telephone and called 911 to report  the

robbery-in-progress.  While Johnson was on  the  phone,

the  other  robber  (Afusia) entered  the  bedroom  and

ripped the cord out of the telephone.

          A  few  moments later, Cathey came  into  the

bedroom,  threatened  Johnson with  the  revolver,  and

demanded  to  know  if  she had any  jewelry.   Johnson

handed  Cathey a heart-shaped ring, but then she  tried

to  escape with $300 rent money that was stored in  her

jewelry  box.  Afusia stopped her before she could  run

from  the apartment.  Afusia subdued Johnson by holding

her to the floor with his foot on her head.  Cathey was

then  able to pry the $300 from Johnsons grasp.   After

watching this, Heinzeroth handed over another  $490  to

Cathey.

          But  Johnsons 911 call had not been in  vain.

While  all  of  this  was occurring,  the  police  were

already on their way to the apartment.  At the sound of

approaching   sirens,  Cathey  and  Afusia   fled   the

apartment; they climbed into a getaway car driven by  a

third  accomplice and drove away.  The robbers car  was

barely  out  of  sight  when the police  arrived.   The

officers quickly obtained a description of the  robbers

and their car, and then they set off in pursuit.

          Within  six  minutes, the police spotted  the

robbers  car.   After a short chase, the three  robbers

abandoned  their vehicle and tried to escape  on  foot.

All of them were quickly arrested.  Afusia had the $300

that  was  stolen  from Johnson.  However,  the  police

never  found  the revolver or the $490 that  Heinzeroth

said he surrendered to the robbers.

          The police then brought the suspects back  to

the  apartment  to see if Heinzeroth and Johnson  could

identify any of them.  Although Heinzeroth and  Johnson

could  not  identify  the  getaway  driver,  Heinzeroth

unhesitatingly identified Cathey and Afusia as the  two

men   who  entered  the  apartment  and  committed  the

robbery.

          Afusia had a distinctive physique:  he  stood

six  foot six and weighed more than 300 pounds.  Cathey

also  had a distinctive appearance:  his hair was in  a

ponytail, and he was wearing a black-and-red jersey and

black  pants.   In addition, Heinzeroth explained  that

you  dont quickly forget the face of a person [who  is]

pointing  a  large-caliber pistol at you.   Heinzeroths

identification  of  Cathey  was  corroborated  by   the

contents of Catheys pants pocket:  the pocket contained

the  heart-shaped  ring  that Johnson  had  surrendered

during the robbery.



Catheys attacks on his indictment


          Cathey  claims that his indictment is  flawed

because,  during the presentation of the  case  to  the

grand  jury, the prosecutor failed to play the tape  of

Johnsons 911 call.  Cathey asserts that the tape of the

911  call was exculpatory evidence  i.e., evidence that

the  prosecutor was obliged to present under  the  rule

announced  in  Frink v. State2  because  Johnson  never

expressly told the 911 dispatcher that the robbers were

armed.

          The  record is unclear as to whether  Johnson

told  the  911 dispatcher that the robbers were  armed.

According to the dispatcher, Johnson was hysterical and

some   of   what  she  said  was  hard  to  understand.

Moreover,  regardless of Johnsons  precise  words,  the

dispatcher   evidently  concluded  that   Johnson   was

reporting an armed robbery in progress  as shown by the

fact  that  twelve  police officers were  sent  to  the

apartment, and by the fact two of these officers stated

in  their reports that they had been dispatched  to  an

armed robbery.

          We  further note that the 911 tape was played

for  the jury at Catheys trial and, afterwards, Catheys

trial  attorney  did not argue that Johnson  failed  to

mention a gun.

          But  regardless of whether Johnson explicitly

told  the  911 dispatcher that the robbers were  armed,

the  tape  of Johnsons conversation with the dispatcher

did not constitute exculpatory evidence for purposes of

          the Frink rule.

          A  prosecutors duty to apprise the grand jury

of  exculpatory evidence extends only to evidence  that

tends,  in  and  of  itself, to negate  the  defendants

guilt.3  Both Heinzeroth and Johnson testified at grand

jury that one of the robbers was armed with a revolver.

Even assuming that Johnson did not explicitly tell  the

911  dispatcher  that  the  robbers  were  armed,  this

omission  would  not in and of itself demonstrate  that

Heinzeroths and Johnsons grand jury testimony  on  this

point was false or mistaken.  As our supreme court  has

stated,

     
          The  mere fact of inconsistency does not
     automatically   convert  ...  evidence   into
     exculpatory  material.  If we were  to  adopt
     [such  a]  broad  reading of the  exculpatory
     evidence rule, [our] action would go  a  long
     way  toward  turning [grand jury] proceedings
     into  a  mini-trial.  It is our intention  to
     avoid such a result ... .
     
Preston v. State, 615 P.2d 594, 602 (Alaska 1980).  We therefore

conclude that even if Johnson did not expressly tell the 911

dispatcher  that  the  robbers were armed,  this  would  not

constitute exculpatory evidence for grand jury purposes.

     In   a  related  argument,  Cathey  asserts  that   the

prosecutor  knowingly presented perjured  testimony  to  the

grand jury.  According to Cathey, the perjury occurred  when

Johnson  testified that she was robbed at gunpoint.   Cathey

contends that the 911 call (specifically, Johnsons purported

failure  to  expressly  say that  the  robbers  were  armed)

demonstrates  that her grand jury testimony on this  subject

was  perjured.   Cathey further contends that,  because  the

prosecutor  had  possession of the 911 tape,  he  must  have

knowingly condon[ed] the introduction of [Johnsons] perjured

testimony.

          As  we  have  already explained, Johnsons  exact  words

during  the  911  call  are not clear.  But  even  assuming  that

          Johnson failed to tell the 911 dispatcher that the robbers were

armed,  this  omission does not, in and of itself,  affirmatively

prove  that  Cathey was unarmed, nor does it prove  that  Johnson

committed perjury when she testified that Cathey was armed.  Even

less does it prove that the prosecutor knowingly condoned perjury

when he presented Johnsons testimony to the grand jury.

          Next, Cathey argues that the prosecutor knowingly  gave

the  grand  jurors a false instruction concerning  the  level  of

proof  required to support an indictment.  Alaska  Criminal  Rule

6(q) states:

          
          The  grand jury shall find an indictment when
          all   the   evidence   taken   together,   if
          unexplained or uncontradicted, would  warrant
          a conviction of the defendant.
          
This  language  has engendered litigation in the  past,  and  one

could  argue that its precise meaning remains unsettled  to  this

day.   However,  in Sheldon v. State, 796 P.2d 831  (Alaska  App.

1990),  this Court rejected the argument that the phrase evidence

...  [that] would warrant a conviction of the defendant  referred

to  proof  beyond  a reasonable doubt.  Instead,  we  interpreted

Criminal  Rule  6(q) to mean that a grand jury should  return  an

indictment  when convinced of the probability of  the  defendants

guilt.4

          Cathey claims that the prosecutor in his case knowingly

misstated this standard to the grand jurors  and that,  in  doing

so,  the  prosecutor was taking advantage of [his]  position  [as

grand  jury  advisor]  to ... actively deceive  the  Grand  Jury.

Cathey bases this claim on remarks that the prosecutor made  just

before  the  grand jury began its deliberations.  The  prosecutor

told the grand jurors:

          
     Prosecutor:  [The] grand jury  ...  [is]
not  expected  to be a mini-trial  where  the
State  produces all of the evidence that  the
State  has against the defendants.  Your  job
is  to  determine  whether or  not  there  is
enough  evidence  to show that  [the  alleged
crimes]  probably happened ... .  [Y]our  job
     as a grand juror is to take the evidence ...
and  determine  whether,  if  unexplained  or
uncontradicted  at  trial,  it  supports  the
charges and, basically, whether or not  there
is a probability that this happened.

Cathey  argues  that  the prosecutors  remarks  were  a

conscious  misstatement of the  law.   Cathey  concedes

that  the  appellate courts of this  state  have  never

expressly  clarified  the meaning of  Sheldons  phrase,

probability  of guilt.  Nevertheless, in six  pages  of

briefing, Cathey argues that this phrase must mean that

the grand jurys task is to decide whether, based on the

evidence  presented at grand jury, a trial  jury  would

probably  find  the governments case  proved  beyond  a

reasonable doubt.  And, based on this proposed analysis

of  Alaska  appellate law, Catheys  appellate  attorney

asserts  that  the prosecutor actively  deceive[d]  the

grand  jurors  when  he told them  that  the  test  was

whether Catheys alleged crimes probably happened.

We  reject  Catheys proposed interpretation of  Sheldon

because  it  would  have the grand jurors  undertake  a

meaningless exercise.  Cathey suggests that  the  grand

jurys task is to decide whether, more likely than  not,

the trial jury will find that the evidence presented to

the  grand jury establishes the defendants guilt beyond

a reasonable doubt.  But a trial jury does not hear the

same type of evidentiary presentation that a grand jury

hears.

          Even  assuming that the State presents exactly the same

evidence  at trial as it did at grand jury (which, in itself,  is

an  unlikely  event),  the point of the trial  is  to  allow  the

defendant  to  confront  the  States  witnesses  through   cross-

examination and impeachment, to present defense witnesses, and to

argue other possible interpretations of the States evidence.   In

other  words, a trial jury rarely hears the governments  evidence

without explanation or contradiction.  The trial jurys task is to

evaluate   the   governments  evidence  in  light  of   potential

contradictions and exculpatory explanations.  It therefore  makes

little  sense to ask the grand jurors to predict whether a  trial

jury  would convict the defendant if the trial jury were to  hear

only the States side of the case.

          Instead,  we conclude that the prosecutors  remarks  to

Catheys grand jury satisfactorily convey Sheldons probability  of

guilt  test.   Lawyers and judges might still  reasonably  debate

whether  Criminal Rule 6(q) establishes a probable cause standard

or  a  more  probable  than not standard  or  whether  these  two

standards  differ  in any material way in a grand  jury  context.

But  regardless of Sheldons precise meaning, Sheldon  establishes

that  the  grand  jury  standard of  proof  is  no  more  than  a

preponderance  of  the evidence  i.e., more  probable  than  not.

Accordingly,  we  conclude that the prosecutor at  Catheys  grand

jury  adequately conveyed the proper test when he told the  grand

jurors  that [their] job [was] to determine whether  or  not  ...

[the alleged crimes] probably happened.

          (We  acknowledge  that  a  grand  jury  must  not  only

determine whether a crime occurred but also whether the defendant

is  legally accountable for that crime.  However, Cathey does not

attack  the prosecutors remarks on this ground.  Moreover,  given

the  grand  jury  evidence  in particular,  Catheys  arrest  just

minutes  after the robbery, the victims identification of Cathey,

and the discovery of the stolen ring in Catheys pocket  there was

essentially no chance that the grand jury would fail to find that

Cathey was one of the men who broke into the apartment.)

          We  need to address one further point.  Even if Catheys

proposed  interpretation of Sheldon had been correct, this  would

offer  no  support  for Catheys accusation  that  the  prosecutor

actively  deceived the grand jurors.  Catheys appellate  attorney

spends  six pages of her brief explaining why Sheldon  should  be

interpreted in the way she proposes.  This fact inevitably  leads

to  one  conclusion:  regardless of the proper interpretation  of

Sheldon,  the issue was obviously debatable, and Catheys proposed

interpretation was only one potential resolution of this point of

law.   Thus,  there is no basis for Catheys attorneys  accusation

that, when the prosecutor interpreted Sheldon differently, he was

actively  trying to deceive the grand jurors by knowingly  giving

them false instructions of law.

          We  take  this opportunity to remind Catheys  appellate

attorney,  and  all other litigators, of the reprimand  that  the

Alaska  Supreme Court issued to one of the attorneys in  Gregoire

v. National Bank of Alaska:

          
               [Appellate counsel] has employed abusive
          and intemperate language in his brief and has
          accused  the trial court and opposing counsel
          of  unethical  and underhanded conduct.   ...
          [We reprimand counsel] and admonish[] him  to
          be  governed  in the future by the  rules  of
          court   and  professional  courtesy  in   his
          representations  to  the  court  and  in  his
          references to opposing counsel.
          
413 P.2d 27, 43-44 (Alaska 1966).

          We  also  caution Catheys appellate attorney  that,  in

briefing  cases  to  this  Court,  she  is  governed  by   Alaska

Professional  Conduct Rule 8.2(a), which declares that  a  lawyer

shall not make a statement ... with reckless disregard as to  its

truth  or  falsity concerning the ... integrity of a  ...  public

legal  officer.  In her briefing of this case, Catheys  appellate

attorney  has  freely  accused  the  grand  jury  prosecutor   of

unethical  and potentially criminal conduct.  These  charges  are

not  even  colorably supported by the record.   We  urge  her  to

carefully consider before making similar unfounded charges in the

future.  See In re Vollintine, 673 P.2d 755 (Alaska 1983),  where

the supreme court publicly reprimanded an attorney who accused  a

government  official of perjury and who accused opposing  counsel

of cheating and lying.5

          Catheys final attacks on the indictment all concern the

sufficiency  of  the  grand jury evidence to  support  particular

charges.

          Cathey asserts that the evidence failed to support  the

          charge of third-degree assault on Kimberlee Johnson because the

evidence revealed that Johnson actively resisted the robbers  and

attempted  to escape with her rent money.  According  to  Cathey,

Johnsons active resistance shows that she was not afraid of being

shot  that she was in fact willing to risk being shot in order to

save the rent money  and therefore the State failed  to show that

Johnson was placed in fear of imminent serious physical injury as

required     by     the     third-degree     assault     statute,

AS 11.41.220(a)(1)(A).

          We  recently rejected this same argument in  Hughes  v.

State,  ___  P.3d ___, Alaska App. Opinion No. 1835 (October  17,

2002), 2002 WL 31355464.  We explained that fear, as used in  the

third-degree assault statute,

          
          does    not    refer   to   fright,    dread,
          intimidation,  panic, or terror.   Rather,  a
          person  is placed in fear of imminent  injury
          if   the   person  reasonably  perceives   or
          understands a threat of imminent injury.   It
          does  not  matter whether the victim  of  the
          assault   calmly  confronts  the  danger   or
          quivers  in terror.  The question is  whether
          the victim perceives the threat.
          
Id., slip opinion at page 3.

          Thus,  the fact that Johnson had sufficient courage  to

try  to escape with the rent money, and then to struggle with the

robbers to retain possession of this money, does not disprove the

States allegation that she was placed in fear of imminent serious

physical  injury.   The  grand jury evidence  was  sufficient  to

support Catheys indictment on this charge.

          Cathey  next  argues that the evidence was insufficient

to  support  Catheys  indictment  for  armed  robbery  of  Justin

Heinzeroth.  The issue arises because the police never found  the

$490  that Heinzeroth said he surrendered to the robbers.   Thus,

it  is  arguable  that Heinzeroth misstated  the  facts  when  he

claimed that, in addition to the $300 rent money that the robbers

pried  from  Johnsons hand, the robbers also  made  off  with  an

additional $490.

          But,  as  the State points out, Cathey was not indicted

for  two  separate robberies committed on Johnson and Heinzeroth.

Rather, Cathey was indicted on one count of first-degree robbery.

This  count,  tracking  the language of AS 11.41.510(a),  charged

Cathey  with using or threatening the immediate use of  force  to

take,  or  attempt to take, property from the immediate  presence

and  control of another.  Thus, even if no money was  taken  from

Heinzeroth,  Catheys use of force to take money from Johnson  was

sufficient to support Catheys indictment for robbery.

          Moreover, as we pointed out in McGrew v. State6,

          
          [T]he crime of robbery is committed, not only
          when  a  defendant uses force upon the person
          who  possesses the property, but  whenever  a
          defendant uses force upon any person with the
          intent   to   prevent  or  overcome   anyones
          resistance  to the taking, or to  compel  any
          person  to  engage  in  conduct  that   might
          facilitate   the   taking.    Thus,   if   [a
          defendant]  used force or threatened  to  use
          force against [one person] with the intent of
          preventing  or overcoming resistance  to  the
          taking  of  property from  [another  person],
          [the defendant] committed robbery.
          
McGrew, 872 P.2d at 626.

          The  grand jury evidence showed that Cathey and  Afusia

broke  into the apartment, threatened Heinzeroth with a gun,  and

demanded  money.   Even if the robbers only obtained  money  from

Johnson,  the  grand  jury could justifiably  conclude  that  the

robbers assault on Heinzeroth was intended to prevent or overcome

resistance to the taking of the property or the retention of  the

property  after  taking.7  Thus, the grand  jury  evidence  would

support  Catheys indictment for robbery even if  Cathey  and  his

accomplice got no money from Heinzeroth.

          Finally, Cathey argues that the grand jury evidence was

insufficient  to  support Catheys indictment  for  armed  robbery

(i.e., first-degree robbery) as opposed to unarmed robbery (i.e.,

second-degree robbery).  But this argument is a replay of Catheys

claim regarding the 911 call  i.e., his claim that Johnson failed

          to expressly tell the 911 dispatcher that the robbers were armed.

We have already explained that, even assuming that Johnson failed

to  expressly mention the gun to the 911 dispatcher, her omission

did  not  undermine the evidence (i.e., Johnsons and  Heinzeroths

grand  jury  testimony)  that  Cathey  was  armed  and  that   he

threatened  both  victims  with  the  gun.   This  evidence   was

sufficient to support Catheys indictment for armed robbery.

          For all of these reasons, we uphold the indictment.



     Catheys motion for a new trial
     

               After  Cathey was tried and convicted of  all

     the crimes alleged in the indictment, he filed a motion

     for  a  new  trial.   In support of the  requested  new

     trial,   Cathey  presented  the  testimony  of  Melanie

     Blazka.  Ms. Blazka testified that, on the afternoon of

     the  robbery,  she  saw  Cathey standing  next  to  the

     vehicle  that  was later used by the robbers  as  their

     getaway  car.  According to Blazka, Cathey  was  alone.

     Based on Blazkas testimony, Cathey argued that he  must

     have  been the getaway driver (rather than one  of  the

     two men who broke into the apartment).

          But  there  were reasons to distrust  Blazkas

testimony.   According to Blazka, she  had  met  Cathey

some eight years before, when they were both living  at

the  McLaughlin  Youth Center.  Blazka testified  that,

until  the day of the robbery, she had not seen  Cathey

since  their days at McLaughlin, but she conceded  that

she  had renewed her acquaintance with Cathey after  he

was  arrested and jailed for the robbery, and that  she

had spoken with him frequently since then.

          Moreover, the evidence indicated that even if

Blazka did see Cathey standing beside the vehicle, this

was  approximately  two hours before  the  robbery  was

committed.   Based on the series of events that  Blazka

described  (leaving work, stopping at the grocery,  and

then seeing Cathey on the street), Blazka saw Cathey at

about  quarter to four in the afternoon.   But  Johnson

called  911 to report the robbery-in-progress  at  5:27

p.m..   Given  this discrepancy, it was quite  possible

for  Cathey  to  have been standing on  the  street  as

Blazka described, and then later to have committed  the

burglary   and   robbery  as  Johnson  and   Heinzeroth

testified.

          After  hearing  Blazkas  testimony,  Superior

Court  Judge Larry D. Card denied Catheys motion for  a

new trial.  First, Judge Card concluded that Blazka was

not  a  credible witness.  Judge Card next found  that,

even  if  Blazkas testimony was believed, it would  not

support  Catheys  proposed alibi for the  burglary  and

robbery.   The judge found that Blazkas observation  of

Cathey on the street occurred some two hours before the

burglary  and  robbery.   Moreover,  the  evidence  was

strong  that Cathey was one of the robbers.   As  Judge

Card noted, both victims described the robber with  the

gun  as  having  a  ponytail  and  wearing  distinctive

clothing   descriptions that matched Catheys appearance

and Johnsons ring was found in Catheys pocket.

          On  appeal, Cathey argues that Judge Card was

wrong  when  he  found that Blazka was not  a  credible

witness and when he found that, in any case, the timing

of  Blazkas observation did not establish an alibi  for

Cathey.   In  essence, Cathey claims  that  Judge  Card

abused his discretion when he did not view the evidence

in the light most favorable to Cathey.

          When  a judge decides a motion for new  trial

based   on  newly  discovered  evidence,  the  ultimate

question is whether the newly discovered evidence would

likely produce a different verdict.8  Assuming that the

defendant establishes diligence in discovering the  new

evidence,  the judges task is to assess the credibility

          of the newly discovered evidence [as well as the]

probable impact of that evidence.9  Having reviewed the

record  in  this  case, we conclude  that  Judge  Cards

findings regarding the credibility and probative  force

of Blazkas testimony are based on reasonable inferences

from  the  evidence.  We therefore uphold  Judge  Cards

ultimate ruling that Blazkas testimony, if heard  at  a

new  trial,  either  would  not  be  believed  or,   if

believed, would not produce a different verdict.



Conclusion


          The  judgement  of  the  superior  court   is

AFFIRMED.



_______________________________
     1   AS   11.46.300(a)(1),   AS   11.41.500(a)(1),   and   AS
11.41.220(a)(1)(A), respectively.

2 597 P.2d 154, 164-66 (Alaska 1979).

3 State v. McDonald, 872 P.2d 627, 639 (Alaska App. 1994).

4 Sheldon, 796 P.2d at 836-37.

5 Vollintine, 673 P.2d at 756.

6 872 P.2d 625 (Alaska App. 1994).

     7 AS 11.41.510(a).

8  Salinas v. State, 373 P.2d 512, 514 (Alaska 1962);  Lewis
v.  State, 901 P.2d 448, 450 (Alaska App. 1995); Charles  v.
State, 780 P.2d 377, 383 (Alaska App. 1989).

9 Gonzales v. State, 691 P.2d 285, 287 (Alaska App. 1984).