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Robart v. State (01/23/2004) ap-1914
Robart v. State (01/23/2004) ap-1914
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
SCOTT P. ROBART, )
) Court of Appeals No. A-
8313
Appellant, ) Trial Court
No. 3AN-97-6951 CR
)
v. )
) O P I N I
O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1914
January 23, 2004]
)
Appeal from the District Court, Third Judi
cial District, Anchorage, John Lohff, Judge.
Appearances: Matthew W. Claman, Claman Law
Firm, Anchorage, for Appellant. Douglas
Kossler and Kenneth M. Rosenstein, Assistant
Attorneys General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Juneau, Attorney General,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
A jury found Scott P. Robart guilty of using the state
seal for an advertising or commercial purpose without the written
permission of the lieutenant governor.1 On appeal, Robart claims
that the statute protecting the state seal, AS 44.09.015, is
preempted by federal copyright law. Robart also claims that the
district court erred when it refused to issue a protective order
to prevent the State from arguing that the state government was
unaware of Robarts use of the state seal, that the jury was not
instructed on Robarts theory of the mistake of fact defense, and
that the general verdict form used did not ensure that the jury
deliberated on all the elements of his defense. For the reasons
expressed below, we find that federal copyright law does not
preempt AS 44.09.015, that no error occurred when the district
court refused to issue the protective order, that the jury was
properly instructed on the mistake of fact defense, and that the
general verdict form was adequate. Accordingly, we affirm
Robarts conviction.
Facts and proceedings
This case began in 1996, when an employee of the State
Department of Commerce and Economic Development wrote Robart and
invited him to submit one or more of your companys products for
consideration for a show featuring consumer products from
Alaska[.]2 The show was to appear on QVC, a home-shopping
television cable channel. Robart decided to participate.3 He
wanted to use the state seal on a medallion commemorating the
anniversary of the Alaska gold rush.
At trial, Robart testified that he did some research
regarding use of the state seal, and found the statute that
required him to get permission from the lieutenant governor. He
called the lieutenant governors office and was told to put his
request in writing; he did so, faxing his request soon after he
had called. He got no response. Although he re-faxed his
request, and made another phone call, he still received no
response. Consequently, he testified that he thought the
lieutenant governors office did not think that the state seal was
important, and that the office would not enforce the statute. But
he then called the governors office, and submitted to that office
the faxes he had sent to the lieutenant governor. He received no
answer from the governors office either.
Because he had been encouraged by the Department of
Economic Development to submit a product, he decided to proceed
and to use the state seal on a medallion without permission.
Robart submitted a form showing the design of his medallion,
which had a reproduction of the state seal on one side. He
testified that no one from the state said anything about his not
having permission. Nor did anyone tell him not to proceed until
he had the permission of the lieutenant governor. Robart said
that because no one said anything to him, he thought that his
using the medallion without permission was not an issue for
anyone in the government.
On February 1 and 2, 1997, various vendors, including
Robart, displayed Alaska-made products at a trade show in
Anchorage. Robarts medallion was one of those chosen to be sold
on QVC. On April 17, 1997, the governor sent Robart a letter,
congratulating him on his companys selection as one of Alaskas
top small businesses, and for earning the opportunity to present
your product during the upcoming QVC live national broadcast.
On May 24, 1997, Robart appeared on QVC marketing a
silver and gold medallion commemorating the anniversary of the
1897 Alaska gold rush.4 A replica of the state seal was on one
side of this medallion, while a design for the Gold Rush
Centennial was on the other side.5 John Lindback, then the
lieutenant governors chief of staff, watched the QVC show; when
he saw Robarts medallion, he wondered if Robart had permission to
use the state seal. Because Robart did not have permission,
Lieutenant Governor Fran Ulmer, on May 29, 1997, sent him a
letter, with a copy of AS 44.09.015, explaining that it had been
her policy since taking office that the state seal shall not be
used for commercial purposes.6 She told him to stop selling the
medallions because he was violating AS 44.09.015.7 Robart
acknowledged receiving this letter.8 He responded with a letter
that same day. Although he claimed that he was confused by the
lieutenant governors position, he did not admit that he had known
that he needed permission, nor did he claim that he thought he
had any authorization to use the state seal.
On August 6, 1997, two months after Robart had been
told to stop selling his medallions, Alaska State Trooper Curt
Harris, posing as a buyer, purchased two of the medallions from
Robart.9 On August 12, 1997, shortly after this purchase,
another trooper interviewed Robart. Robart told this trooper
that he did not know that he needed permission to use the state
seal.
The State charged Robart with using the state seal for
commercial purposes without the written permission of the
lieutenant governor.10 Robart moved for dismissal on the grounds
that the statute violated his federal and state constitutional
rights to free speech. The district court agreed, concluding
that the state statute violated Robarts constitutional right to
freedom of speech and expression.11 The State appealed.
On appeal, after finding that the State had a
legitimate governmental interest in regulating the commercial use
of the state seal, we concluded that commercial use of the state
seal was not protected speech.12 After we reversed the district
courts dismissal, Robart successfully petitioned the supreme
court for a hearing. When granting the petition for hearing, the
supreme court ordered the parties to brief whether federal
copyright law preempted AS 44.09.015. After briefing and oral
argument, however, the supreme court dismissed the petition as
improvidently granted.
The case then returned to the district court. There,
Robart moved to dismiss the charge, arguing that federal
copyright law preempted AS 44.09.015. Robart relied on the
briefings that he and the State had submitted to the supreme
court. Robart also submitted the transcript of the oral argument
before the supreme court. Ultimately, District Court Judge John
Lohff denied Robarts motion.
At trial, Robart claimed that his defense was a mistake
of fact regarding whether he had gotten permission to use the
seal. But at trial, Robart wanted the jury instructed that the
governor (rather than the lieutenant governor) could and did give
Robart written permission to use the state seal. To that end,
Robart unsuccessfully sought a number of jury instructions that
addressed various principles from agency law (agents and
principals, and imputed knowledge), and the powers and duties of
the governor. Most of these requests for instructions were
denied, although the district court did agree to instruct the
jury that the executive power of the state is vested in the
governor, and that his office included the lieutenant governor
and the governors staff. In addition, the district court
modified some of Robarts other proposed instructions. Robart
also unsuccessfully sought both a protective order to prevent the
State from claiming that state employees were unaware that he was
using the state seal on his medallion after February 1997, and an
elaborate special verdict form. A jury found Robart guilty of
violating AS 44.09.015. This appeal followed.
Does federal copyright law preempt AS 44.09.015?
Robart claims that federal copyright law preempts AS
44.09.015(a), which provides that a person may not use or make a
die or impression of the state seal for any advertising or
commercial purpose, unless written permission has first been
obtained from the lieutenant governor.13
Federal copyright law is found at 17 U.S.C. 100-1332
(2000). Among other things, it provides in part that all legal
or equitable rights that are equivalent to any of the exclusive
rights within the general scope of copyright ... are governed
exclusively by this title. 17 U.S.C. 301(a). Section 301(a),
however, is qualified by subsection (b), which provides that
[n]othing in this title annuls or limits any rights or remedies
under the common law or statutes of any State with respect to
certain types of matters or actions. The first of these
exceptions is subject matter that does not come within the
subject matter of copyright as specified by sections 102 and 103
[of Title 17].14 The second exception does not apply in this
case. The third exception addresses activities violating legal
or equitable rights that are not equivalent to any of the
exclusive rights within the general scope of copyright as
specified by section 106 [of Title 17].15
Robarts position is that the state seal can only be
protected by the federal copyright statute. Based on copyright
law, he argues that the state seal is now in the public domain
and can be used freely by the public. He concludes that the
state cannot pass its own statute to provide protections similar
to those in the copyright statute.
The States position is that AS 44.09.015 is not
preempted, because it falls within the preemption exceptions
listed in 17 U.S.C. 301(b). The State argues that AS 44.09.015
falls within 301(b)(1) and (b)(3). Under 301(b)(1), federal
copyright law does not preempt state law that addresses rights or
remedies that do not come within the subject matter of copyright
as set out in 102 or 103. Meanwhile, under 301(b)(3), federal
copyright law does not preempt state law that addresses rights or
remedies with respect to ... activities violating legal or
equitable rights that are not equivalent to any of the exclusive
rights within the general scope of copyright[.] The State argues
that a state seal, because it is the symbol of a sovereign, is
not a type of work that comes within the subject matter of
copyright.
We agree with the State copyright law does not preempt
the Alaska statute limiting the commercial use of the state seal.
We believe it is clear that states have the power to protect
symbols of their sovereignty.16 For instance, the Supreme
Judicial Court of Massachusetts in Commonwealth v. R.I. Sherman
Manufacturing Co., held that the commonwealth could prevent the
use of its seal for advertising or commercial purposes.17
Convicted of violating a statute that prohibited the use of the
great seal of the commonwealth, [or] any representation thereof,
for any advertising or commercial purpose whatever,18 the
defendant argued that the commonwealth had interfered both with
the defendants trademark and with the commerce clause of the U.S.
Constitution. Finding that the commonwealth had appropriated its
great seal to itself as a symbol of its sovereignty,19 the court
said that [a]s against the commonwealth, the defendant cannot
have any claim to a trademark.20 The fact that the commonwealth
could protect its seal was to the court too clear for argument.21
The court also found that because the statute merely ...
protect[ed] the seal and coat of arms of the commonwealth, it did
not conflict with the commerce clause.22
Likewise, the federal Court of Appeals for the District
of Columbia in In re Cahn, Belt, & Co.23 recognized that as
against a state, no person or entity can acquire [an exclusive
use] property right in the [states] coat of arms ... or any
simulation thereof[.]24
In addition, in Katz v. Department of Motor Vehicles,25
the California Court of Appeals ruled that the state had the
right to protect the legitimacy, credibility and reliability of
its symbols and emblems because of the substantial impact the
symbols may have on public attitudes and behavior.26 Katz had
challenged the constitutionality of the states power to prevent
certain combinations of numbers, letters or both from appearing
on personalized license plates.27
Before Congress can be said to have preempted an area
that has traditionally been occupied by the states, congressional
intent to supersede state laws must be clear and manifest.28
Here, federal copyright law is silent on this issue state seals
are not mentioned at all. Additionally, we cannot find a single
federal or state case discussing the application of federal
copyright law on laws protecting state seals. Nor have we or
the parties found any other evidence that Congress intended to
preempt the states ability to protect and regulate their state
seals.
Moreover, state seals appear to be more akin to
trademarks or service marks than they are to the type of work
Congress intended copyrights to cover. The federal trademark
statute unlike the copyright statute specifically provides for
state flags, coats of arms, or other insignia by prohibiting them
from being registered. See 15 U.S.C. 1052 (2000).
Additionally, the majority of cases addressing state seals are
trademark cases;29 there are no copyright cases addressing this
issue.
Although we recognize that trademark and copyright law
can overlap,30 generally speaking, the two schemes address
different concerns. Under the copyright statute, an author
secures the sole right to copy the protected work and to license
others to produce copies.31 The copyright holder may not only
exploit his work commercially, [but] may also exercise the
copyright in a purely proscriptive manner to prevent anyone from
copying the protected work.32 Trademarks, however, are based on
common law concepts of unfair competition; hence, the purpose of
a trademark is to prevent confusion as to the origin of goods or
services and to prevent fraud and misrepresentation as to their
source.33 Here, AS 44.09.015 does not provide the equivalent of
copyright protection; rather, it provides protection analogous to
trademark protection.
Finally, as the State points out, despite the broad
sweep of federal copyright law, and despite a specific statute
that places all federal government work in the public domain,34
Congress has passed a statute protecting symbols similar to a
state seal. Under 18 U.S.C. 713(a) (2000), Congress has
protected the great seal of United States, the seals of the
President and the Vice President of the United States, the seal
of the United States Senate, the seal of the United States House
of Representatives, and the Seal of the United States Congress.
Although Section 713(a) makes it a crime to use any of these
seals for the purpose of conveying ... a false impression of
sponsorship or approval by the Government of the United States,
subsections (b), (c), (d), and (e) generally make it a crime
merely to manufacture, reproduce, use, sell, or purchase any
likeness of these seals (except the great seal of the United
States) without permission from the appropriate agency. It seems
evident that Congress, by protecting specific important federal
seals that were left unprotected by copyright law (and by federal
trademark law), did not intend to prohibit states from protecting
seals that represent state sovereignty.
For all the above reasons, we conclude that federal
copyright law does not preempt AS 44.09.015, which protects the
state seal from unauthorized commercial use.
Robarts requested protective order
Robart claims that he was entitled to a protective
order that prevented the States witnesses from claiming that they
did not know that he was using the state seal after state
employees saw it as part of his initial submission for the trade
show. Robart based this request on his claim that under the
theory of imputed knowledge, the knowledge of one state employee
must be imputed to all other state employees. After hearing
argument, Judge Lohff denied Robarts motion. We find no error.
Even assuming that Robarts theory of imputed knowledge among
state agencies and employees was applicable in this case, Robart
was convicted for using the state seal after the lieutenant
governor expressly informed him that he was doing so illegally.
It was not relevant what other state employees knew before Robart
was warned. (Moreover, under Robarts imputed knowledge theory,
when the lieutenant governor told him to stop using the seal, she
acted on behalf of the governor.)
Additionally, Robart has not shown how he was
prejudiced. No State witness testified that they were ignorant
of Robarts use of the state seal. In his reply brief, Robart
argues that he wanted the protective order to prevent the State
from arguing that the governor could not or did not give him
permission to use the state seal. But he did not present this
reason to Judge Lohff, nor for the reasons explained in the next
section was Robart entitled to a protective order that prevented
the State from making this argument.
Was the jury instructed on Robarts theory of
defense?
Robart next claims that Judge Lohff should have given
Robarts proposed jury instructions because these instructions ...
described and defined Robarts theory of defense. At trial Robart
characterized his defense as a mistake of fact, but he claimed
that to establish this defense, he was entitled to have the jury
instructed on general principles of corporate agency law. To
that end, Robart sought instructions that defined agent and the
scope of an agents authority. He also wanted the jury instructed
that an act or omission of state employees was the act or
omission of the governor, and that any act or omission of any
state employee, including the governor and the lieutenant
governor, was the act or omission of the state.
Most importantly, however, Robart wanted the jury
instructed that both the governor and the lieutenant governor
could grant permission to use the state seal. Robarts desired
defense, and his agency instructions, were based on the notion
reflected in this last instruction: that because the governor is
the head of the executive branch, he has the same authority as
the lieutenant governor over the state seal. Judge Lohff
properly rejected this instruction because it is not supported by
the constitution or AS 44.09.015.
The Alaska Constitution provides that the lieutenant
governor shall perform such duties as may be prescribed by law
and as may be delegated to him by the governor.35 With regard to
the state seal, the lieutenant governor has duties prescribed by
law. In AS 44.19.022, the legislature expressly made the
lieutenant governor the custodian of the state seal. Likewise,
in AS 44.09.015, the legislature granted the lieutenant governor
the authority to grant permission to use the state seal for a
commercial use. These statutes show a clear legislative intent
that the lieutenant governor has authority to permit use of the
state seal for a commercial or advertising purpose. Although the
governor can, by appropriate court action or proceeding ...
enforce compliance with any constitutional or legislative
mandate36 nothing in the constitution allows the governor to
supplant the lieutenant governor with regard to that persons
duties ... prescribed by law.
Hence, Judge Lohff properly rejected Robarts
instructions because they misstated the law that is, contrary to
statute, they told the jury that the governor could grant
permission to use the state seal.
Although Judge Lohff rejected Robarts assertion that
the governor, as a matter of law, had the authority to grant
permission to use the state seal, Judge Lohff allowed Robart to
present a legitimate mistake of fact defense. Judge Lohff
instructed the jury that [t]o prove that the defendant did not
act under a reasonable mistake of fact, the state must prove that
the defendants mistaken belief that he had permission from the
lieutenant governor to use a die or impression was not reasonable
and that the defendants reliance on a course of communication
with the governor or the lieutenant governor in reaching his
belief was not reasonable. This defense was based on evidence
of the states consistent failure to respond to Robarts requests
for permission, on the encouragement to produce the medallions,
and on the congratulatory letter from the governor. This
defense properly allowed Robart to argue to the jury that the
state, by its actions, led him to believe that the State
permitted his use of the seal.
We conclude that Judge Lohff did not err when,
rejecting Robarts characterization of the mistake of fact
defense, he denied Robarts proposed jury instructions.
Robart also claims that error occurred when, at the end
of trial, Judge Lohff changed two instructions that he had given
at the beginning of trial, when he gave the jury some preliminary
instructions. Of these, one explained the elements of the
offense, while another explained the elements of the defense. In
each of these, however, the preliminary instructions omitted the
statutory requirement that Robart have written permission from
the lieutenant governor to use the state seal for a commercial
purpose. Later, when discussing the final instructions, the
State pointed out that these instructions, to accurately set out
the elements of the statute, had to have the word written added.
Judge Lohff agreed, but Robart objected.
On appeal, Robart argues that changing the preliminary
instructions vitiated his defense. But Judge Lohff was required
to instruct the jury on the essential elements of the offense.37
Moreover, the defense of mistake of fact instruction did not
require that the permission be in writing. The language of this
instruction allowed Robart to argue, based on the encouragement
he received from state agencies and on his correspondence with
the governor and the lieutenant governor, that he had a
reasonable mistaken belief that he had permission from the
lieutenant governor to use the state seal.
In addition, Robart has not shown how his defense was
prejudiced. The record shows that prior to trial he was clearly
placed on notice by both the statute and the charging document
that he had to have written permission to use the state seal.
Before trial, Robarts position was that the governors April
letter was specific written permission to use the seal. As for
his defense, Robart did not claim in his opening statement that
he had written or unwritten permission to use the seal. Instead,
he asserted that it had been a reasonable mistake of fact for him
to rely on the pattern of non-response from the lieutenant
governor, the letter from the governor, and the encouragement he
received from other state agencies. In addition, Judge Lohff
told Robart early in the trial that he could argue as part of his
mistake of fact defense that he had reasonably considered that
this letter constituted written permission to use the state seal.
We conclude that Judge Lohff did not err when he corrected the
erroneous preliminary instructions. Under the circumstances of
this case, Robarts defense was not prejudiced.
Robarts other requested instructions
Robart also claims that his theory of defense required
the trial court to instruct the jury that the State could not
claim that it was ignorant of the law and to apply the definition
of writing that is included in the Uniform Commercial Code.
Robart further claims that the jury should have been given an
elaborate definition of what constitutes acting unreasonably. He
also claims that to ensure that the jury considered his defense,
he was entitled to a special verdict form. Judge Lohff refused
to give the first instruction, and modified the other two; he
also rejected Robarts proposed special verdict form.
Although the trial judge must instruct the jury on the
essential elements of an offense or a defense, the trial judge
has broad discretion to decide what other instructions to give
the jury.38 Here, we find no abuse of discretion.
Robart argues that the first of these instructions was
important because he relied on the government to warn him that he
did not have permission to use the seal. But even assuming that
such an instruction would ever be warranted in a criminal case,
Robart was warned by the lieutenant governor to stop using the
state seal;39 Robart was charged for using the state seal only
after he ignored that warning.
Robart next argues that his other two requested
instructions were necessary to allow him to present his defense.
But [a]s long as the instructions actually given by the trial
court adequately set forth the applicable law, a more elaborate
explanation of the defendants theory of the case is not required
unless it would substantially aid the jury in arriving at a just
verdict.40 The instructions as given by Judge Lohff adequately
informed the jury as to what constitutes a writing under AS
44.09.015, and as to what acting reasonably means. Here, the
jury was instructed that a writing includes printing, typewriting
or any other intentional reduction to tangible form. From this,
Robart was allowed to argue that the governors congratulatory
letter, despite its lack of relevant language, was a writing.
Meanwhile, the jury was instructed that acting reasonably meant
that [i]n deciding whether a party acted reasonably or
unreasonably, you may consider what a reasonably prudent person
would do under similar circumstances and that [a]cting reasonably
may consist of doing something that a reasonably prudent person
would do, or it may consist in not doing something that a
reasonably prudent person would not do. Again, this was
sufficient to allow Robart to argue that he had acted reasonably,
and that the State had acted unreasonably.
Accordingly, we conclude that no error occurred by the
rejection or modification of these three instructions.
Judge Lohff also rejected the special verdict form.
Robart argues that the special verdict form was required to
ensure that the jury properly considered the elements of his
mistake of fact defense. He made a similar argument below, but
Judge Lohff rejected this argument and found that the jury could
follow the instructions setting out Robarts defense. We conclude
that Judge Lohff did not abuse his discretion by using a general
verdict form.
Conclusion
Robarts conviction is AFFIRMED.
_______________________________
1 AS 44.09.015(a) & (b).
2 State v. Robart, 988 P.2d 1114, 1114 (Alaska App. 1999).
3 Id.
4 Id.
5 Id.
6 Id.
7 Id.
8 Id.
9 Id.
10 Id.
11 Id. at 1115.
12 Id.
13 Under AS 44.09.015(b), [v]iolation of this section is a
misdemeanor, and upon conviction is punishable by a fine of not
more than $500, or by imprisonment for not more than six months,
or by both.
14 Section 102 (a) provides that [c]opyright protection
subsists, in accordance with this title, in original works of
authorship fixed in any tangible medium of expression, now known
or later developed, from which they can be perceived, reproduced,
or otherwise communicated, either directly or with the aid of a
machine or device. This section then provides a list of
categories of works of authorship:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
Section 102(b) provides that [i]n no case does copyright
protection for an original work of authorship extend to any idea,
procedure, process, system, method of operation, concept,
principle, or discovery, regardless of the form in which it is
described, explained, illustrated, or embodied in such work.
Section 103 applies to compilations and derivative works of the
items listed in 102, and is not applicable in this case.
15 Section 106 provides that
[S]ubject to sections 107 through 121 [none of which apply
in this case], the owner of copyright under this title has
the exclusive rights to do and to authorize any of the
following:
(1) to reproduce the copyrighted work in copies or
phonorecords;
(2) to prepare derivative works based upon the
copyrighted work;
(3) to distribute copies or phonorecords of the
copyrighted work to the public by sale or other transfer
of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and motion pictures and
other audiovisual works, to perform the copyrighted work
publicly;
(5) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and pictorial, graphic,
or sculptural works, including the individual images of a
motion picture or other audiovisual work, to display the
copyrighted work publicly; and
(6) in the case of sound recordings, to perform the
copyrighted work publicly by means of a digital audio
transmission.
16 The state seal is provided for in article XV, 21, of the
Alaska Constitution.
17 75 N.E. 71, 72 (Mass. 1905).
18 Id. at 71.
19 Id.
20 Id. at 72.
21 Id.
22 Id.
23 27 App. D.C. 173 (1906).
24 Id. at 5.
25 108 Cal.Rptr. 424 (Cal. App. 1973).
26 Id. at 428.
27 Id. at 425.
28 Totemoff v. State, 905 P.2d 954, 958 (Alaska 1995)
(citations omitted).
29 See R.I. Sherman Mfg. Co., 75 N.E. at 71; In re Cahn,
Belt, & Co., 27 App. D.C. at 173.
30 See, e.g., Bicentennial Commn. v. Olde Bradford Co., 365
A.2d 172, 176 (Pa. 1976) (Although the laws governing copyrights
and trademarks may overlap as applied to a single item, they are
intended to grant quite different forms of protection to their
holders.).
31 Id. (citation omitted).
32 Id.
33 Id.
34 See 17 U.S.C. 105.
35 Alaska Const. art. III, 7.
36 Id. art. III, 16.
37 See Sears v. State, 713 P.2d 1218, 1219 (Alaska App.
1986) ([T]he trial court is under a duty to instruct the jury on
the essential elements of the offense.).
38 Stoneking v. State, 800 P.2d 949, 950 (Alaska App.
1990).
39 Robart, 988 P.2d at 1114.
40 Lee v. State, 760 P.2d 1039, 1041 (Alaska App. 1988).
