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Kenison v. State (02/11/2005) ap-1970

Kenison v. State (02/11/2005) ap-1970

                             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


JOEL MORRIS KENISON,          )
                              )              Court of Appeals No.
A-8567
                                             Appellant,         )
Trial Court No. 3AN-01-9958 Cr
                              )
                  v.          )
                              )                       O  P  I   N
I  O  N
STATE OF ALASKA,              )
                              )
                                             Appellee.          )
[No. 1970   February 11, 2005]
                              )


          Appeal  from the Superior Court,  Third  Judi
          cial   District,   Anchorage,   Michael    L.
          Wolverton, Judge.

          Appearances:   Rex Lamont Butler,  Anchorage,
          for the Appellant.  Nancy R. Simel, Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Gregg  D.  Renkes, Attorney General,  Juneau,
          for the Appellee.

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

          MANNHEIMER, Judge.


          Joel  Morris Kenison appeals his conviction for  first-

degree   stalking.1   He  contends  that  the   State   presented

insufficient   evidence  to  the  grand  jury  to   support   his

indictment.   Kenison  further  contends  that  his  trial  judge

committed  error by allowing the State to introduce  evidence  of

various instances of Kenisons past conduct toward the victim, his

          estranged wife.  Kenison also argues that the trial judge should

not  have allowed the State to amend the indictment at the  close

of  the  trial, altering the dates of the stalking to conform  to

the  evidence  presented at trial.  In addition,  Kenison  argues

that  the  trial judge should have declared a mistrial  based  on

statements   made  by  the  prosecutor  during  the   governments

summation  to the jury.  Finally, Kenison asserts that the  trial

judge  should  have given the jury a special instruction  on  the

meaning of the term fear.

          For  the  reasons  explained here, we  reject  each  of

Kenisons  assertions  of  error, and we  accordingly  affirm  his

conviction.



     Underlying facts
     

               Joel  and  Mary Ann Kenison married in  1989.

     They  separated  in  August  1998,  and  they  formally

     divorced two years later.

               Following  the couples separation  in  August

     1998,  Joel  Kenison repeatedly sought a reconciliation

     with  his estranged wife.  Kenison also began to harass

     and  threaten  Mary Ann, focusing particularly  on  her

     relationships  with  other  men.   Mary  Ann   obtained

     several  protective orders (at various  times)  against

     Kenison.  But despite these protective orders, Kenisons

     harassing  and threatening behavior did not  cease;  it

     continued until Kenisons arrest in December 2001.

     

       (a)  The  couples separation, and the events  leading
            up  to  the  first  protective  order  (November
            1998)
     

          Mary Ann testified that the Kenisons marriage

had  been in trouble for several years when she finally

moved out of the marital home in August 1998.  Mary Ann

stated  that  she  did not inform Kenison  of  her  new

address because she was afraid of him.

          Immediately  after  the  separation,  Kenison

made repeated attempts to reconcile with Mary Ann,  but

she  remained  adamant in her desire to  separate  from

him.   During this period, Kenison made many  telephone

calls  to  Mary  Ann.  Kenison sometimes  placed  these

calls at all hours of the day; Mary Ann testified that,

at times, her phone continued to ring after midnight.

          In  these  calls, Kenison repeatedly  accused

her  of  leaving him for another man.  Kenison went  so

far  as to threaten to kill one of Mary Anns co-workers

(because  Kenison suspected that Mary  Ann  was  dating

this  co-worker).  Kenison also threatened to stop  all

involvement with the couples two children if  Mary  Ann

continued to see other men, and he threatened  to  burn

down  the  marital  home.  And,  on  occasion,  Kenison

threatened to commit suicide if Mary Ann did  not  come

back to him.

          Mary Ann testified that she was scared by the

number  and  the  content of Kenisons telephone  calls,

especially  his  repeated  threats  of  violence.   She

stated  that [she] had no idea what he might  do.   For

this  reason,  Mary Ann began to tape  record  Kenisons

calls.

          Kenisons  harassment  of  Mary  Ann  was  not

limited to telephone calls.  Kenison drove by Mary Anns

residence twice when Mary Ann was entertaining a friend

for dinner one evening.  On another occasion, during  a

period  when Kenison was repeatedly calling her  house,

Mary  Ann saw someone running out of her yard and  down

the  street.  When she went out to check, she  observed

footprints leading up to her window.

          On  November 7, 1998, Kenison drove  by  Mary

Anns  residence when she was entertaining a guest,  and

then  he  telephoned her and made threats to  harm  her

guest.   Mary  Ann called the police that  night.   She

testified that [she] was very scared that [Kenison] was

going to come over to [her] residence and hurt [her].

          Ten  days  later, on November 17th, Mary  Ann

petitioned  the  court  for a 20-day  protective  order

against  Kenison.  The order was granted,  and  Kenison

was  served with this protective order on December 3rd.

When  this  protective order expired on  December  7th,

Mary Ann did not seek a six-month order.  She explained

that she just wanted to get [Kenisons] attention ... so

that  he  [w]ould realize that his behavior was harmful

and inappropriate.



  (b)  The  events  leading up to  the  second  set  of
       protective orders (June and July 1999)


          While the November 1998 protective order  was

in  effect, Kenison abided by its terms.  But when  the

protective order expired, Kenison again began  to  call

Mary  Ann and to write her letters.  Mary Ann responded

by trying to limit her communication with Kenison to  a

minimum.  She did not return his phone calls,  and  she

ignored   his   letters.   She  also   arranged   child

visitation schedules so that she would not have to meet

with Kenison face-to-face.

          This  policy  apparently worked  for  several

months.   But  in  May  1999, Mary Ann  started  dating

another  man, G.N..  Kenison called Mary Ann  and  left

angry messages regarding this relationship.  As before,

Kenison  threatened  to hurt or  kill  Mary  Anns  male

friends  (both  G.N. and one of Mary Anns  co-workers).

He  also  threatened to refuse to be involved with  the

children  if  she continued to date G.N..  And  Kenison

threatened to commit suicide if Mary Ann did not return

to him.

            Kenison  also began driving  by  Mary  Anns

residence  for  no  apparent reason, often  with  their

children in the car.

          Kenison  also  targeted  G.N.  for  harassing

phone  calls.   On three occasions, G.N.  answered  the

phone  at  his  house only to be greeted  by  an  open,

silent line.  Two of these calls occurred when Mary Ann

was visiting G.N.s house.

          As   a  result  of  Kenisons  harassing   and

threatening  conduct,  Mary  Ann  sought  and  obtained

another 20-day protective order on June 18, 1999.   The

order was served on Kenison two days later.

          Mary Ann testified that Kenison violated  the

no  communication provision of this protective order on

two  occasions.   Once,  Kenison telephoned  Mary  Ann,

ostensibly  to check on their childrens  welfare.   And

once,  Kenison  sent  a  letter to  Mary  Ann,  seeking

reconciliation with her.

          This  time, when the 20-day protective  order

expired,  Mary  Ann  sought and  obtained  a  six-month

protective  order.  This order was signed  on  July  6,

1999.   Under the terms of the six-month order, Kenison

was  prohibited from visiting Mary Anns house  and  her

place   of   employment.   Further,  all  of   Kenisons

communications   with   Mary   Ann     including    any

communications  involving their children   were  to  be

conducted through an intermediary, Mary Anns brother.

          According  to  Mary  Ann,  Kenison  generally

conformed  his behavior to the terms of this  six-month

protective   order.   The  harassing  telephone   calls

stopped  while  the order was in effect  although  Mary

Ann  suspected that Kenison continued to drive past her

residence.  (Apparently, their son later confirmed Mary

Anns suspicion.)



  (c)  The  events  leading  up to  the  third  set  of
       protective orders (October 2000)


          In  August  2000,  Mary  Ann  started  seeing

another man.  This event prompted Kenison to resume his

campaign of harassment and threats.

          Mary  Ann  happened to meet this man  shortly

before she was to go on a three-week vacation.  Kenison

apparently  did  not view this timing as  coincidental.

He  telephoned  Mary  Ann  on  the  day  that  she  was

scheduled to leave on her trip.  Screaming and yelling,

Kenison threatened that he would refuse to take care of

their children while she was away.  He accused Mary Ann

of running off to get married.

          Shortly   after   she  returned   from   this

vacation, Mary Ann invited her new boyfriend  over  for

dinner.  According to her testimony, as soon as the man

arrived  at her house, her telephone began ringing  off

the  hook:  it was Kenison.  Kenison demanded  to  know

what  Mary Ann was doing with a man in her house.  Mary

Ann   hung  up,  but  the  calls  continued  until  she

unplugged  her phone.  Later, when the man was  getting

ready  to leave Mary Anns home, he discovered that  his

vehicle had a flat tire.

          After  this  incident, Kenison  continued  to

make harassing phone calls to Mary Ann.  Kenisons phone

calls  were so relentless that Mary Ann was  forced  to

unplug  her telephone in the evening so that she  could

get  a  good  nights  sleep.  Mary Ann  testified  that

Kenisons possessiveness and his jealousy were very  ...

scary and very threatening.

          On  October 1, 2000, Mary Ann obtained a  20-

day  protective order against Kenison.  (This order was

served  on  Kenison three days later.)   Eighteen  days

later,  Mary Ann obtained a six-month protective  order

against Kenison.



  (d)  The  events  leading up to  the  fourth  set  of
       protective orders (May and June 2001)


          Despite  this third set of protective orders,

Mary   Ann   continued  to  receive  numerous   hang-up

telephone  calls, both at home and at her work.   These

calls were now coming from unidentified numbers.   When

Mary  Ann sought advice from local agencies who  assist

domestic  violence victims, the agencies  told  her  to

write  down whatever information about these calls  was

displayed  on her caller-ID screen.  Mary Ann  did  so,

and   she  discovered  that  many  of  the  calls  were

originating  from  pay phones in her neighborhood.   In

March 2001, Mary Ann wrote a letter to Kenison in which

she  confronted  him  with this  information.   Kenison

denied  that  he  was the one calling her.   The  calls

continued.

          Also  in March 2001, Mary Ann started  dating

A.B..   In  April,  she  made plans  to  celebrate  her

birthday by going out to dinner with A.B..  As Mary Ann

drove  to  meet  A.B.,  she noticed  that  Kenison  was

driving next to her, waving at her.  Mary Ann tried  to

lose  Kenison  by  exiting  the  freeway,  but  Kenison

followed  her,  even though he had  to  cross  multiple

lanes of traffic to do so.  Mary Ann eventually had  to

pull over and stop  at which point, Kenison drove away.

          A.B.   also  became  a  target  of   Kenisons

harassment.  A.B. began to receive harassing  telephone

calls on both his business and his personal phone lines

at  his  home.  A.B. testified that, when  he  answered

these calls, there would be silence on the other end of

the line.  The calls would usually come in spurts.

          In  addition, the tires of A.B.s vehicle were

slashed  on  two occasions that spring.  One  of  these

occasions  was on the morning after A.B. and  Mary  Ann

went  on  a date.  On the second occasion, the slashing

occurred  while  Mary Anns vehicle was also  parked  at

A.B.s residence, and her vehicle also suffered two flat

tires.   (The other three cars in the same parking  lot

sustained no tire damage.)

          Mary Ann reported this incident to the police

on  May 25, 2001.  That same day, Mary Ann obtained yet

another  protective order against Kenison.  This  order

was served on Kenison on May 31, 2001.  Four days later

(June  4th), Kenison violated this order by  writing  a

letter  to  Mary Ann.  On June 11th, the court  granted

Mary  Ann  a  six-month  protective  order.   Like  the

previous  orders,  this  one  prohibited  Kenison  from

having any contact with Mary Ann, with the exception of

written  communications involving their  children.   In

addition Kenison was prohibited from visiting Mary Anns

residence and A.B.s residence.



  (e)  The  events leading up to Kenisons arrest on the
       evening of December 7-8, 2001


          During the summer of 2001, Kenison engaged in

multiple  contacts with Mary Ann.  She began  receiving

hang-up  calls from pay phones in the area.   She  also

received  a  note  from Kenison in which  he  expressed

anger  that  she  had (purportedly) amended  the  child

custody schedule to accommodate her social life.

          In  July 2001, when Mary Ann went to the  day

care  center to pick up their daughter, she found  that

Kenison  was behind her.  Kenison attempted  to  engage

her  in conversation.  Later that same month, Mary  Ann

encountered Kenison when she went to pick up their  son

from a basketball camp.  And on August 17th, while Mary

Ann  was  hosting  a dinner party at  her  house,  A.B.

looked  out  the window and saw Kenison slowly  driving

down the cul-de-sac.

          In late September, Mary Ann went to hear A.B.

play music.  While she was there, she was paged two  or

three  times.   She also continued to  receive  hang-up

telephone calls.

          In  late  October  2001,  Mary  Ann  went  to

breakfast with A.B. and a third person.  When Mary  Ann

left the restaurant, she saw Kenison across the street,

waving  at her.  Mary Ann ignored him and got into  her

car.  Kenison, with their children in the car, followed

her.   As they drove, Kenison pulled up beside her  and

shouted obscenities at her.

          On  December 1, 2001, A.B. suffered  a  third

tire  slashing.   He  filed a police report  concerning

this  incident  on  December 3rd.   In  the  week  that

followed, A.B. received more harassing phone calls than

ever before.

          Also  in  early  December,  Mary  Ann  became

concerned  because Kenison had failed  to  drive  their

children  to school.  When Mary Ann telephoned  Kenison

to  check  on the children, Kenison told her  that  the

children  were fine, and then he began to question  her

about A.B..

          On  the  night of December 7, 2001, Mary  Ann

visited  A.B.s residence.  Shortly after she  and  A.B.

entered  the  residence, the two telephone lines  began

ringing  off  the hook.  After answering two  or  three

calls,  and being met with silence on the other end  of

the line, A.B. called the police.

          While Mary Ann and A.B. waited for the police

to  arrive,  the  phone continued to ring.   When  A.B.

answered  the phone, Kenison spoke to him  although  he

identified himself as Bill Clinton.  With anger in  his

voice,  Kenison demanded to talk to Mary Ann,  but  she

refused to speak with him.

          The police arrived around eleven oclock.   By

that  time, Mary Ann was frightened, tired, and  upset;

she estimated that Kenison had called the house a total

of  twenty times.  By tracing another call that Kenison

made  shortly  thereafter,  the  police  were  able  to

discover the number of the originating telephone.  Mary

Ann  identified  this number as belonging  to  Kenisons

cell phone.

          After the police confirmed that there was  an

outstanding  protective order that  prohibited  Kenison

from contacting Mary Ann, they arrested Kenison (either

later that night or early the next morning).

          Kenison   was  charged  with  violating   the

protective  order, and he was also charged with  first-

degree  stalking.  Following a jury trial, Kenison  was

found guilty of both charges.



Kenisons attacks on his indictment


          Before  trial,  Kenison  filed  a  motion  to

dismiss  his  indictment; he argued that  the  evidence

presented  to  the  grand  jury  was  insufficient   to

establish  that  he had committed the crime  of  first-

degree stalking.

          The  basic  crime of stalking  (second-degree

stalking) is defined in AS 11.41.270.  Under subsection

(a)  of  this statute, the crime consists of  knowingly

engag[ing]  in  a  course  of conduct  that  recklessly

places  another  person in fear of  death  or  physical

injury, or in fear of the death or physical injury of a

family member.

          The  phrase  course of conduct is defined  in

subsection (b) of the statute.  It means repeated  acts

of  nonconsensual contact involving  the  victim  or  a

family  member2   with the proviso that  family  member

includes  any  person who is or has been in  a  dating,

courtship, or engagement relationship with the victim.3

The  term  nonconsensual  contact  is  defined  as  any

contact  with  another  person  that  is  initiated  or

continued  without that persons consent, [or]  that  is

beyond  the  scope  of  the consent  provided  by  that

person,  or  that  is  in  disregard  of  that  persons

expressed  desire  that  the  contact  be  avoided   or

discontinued.4  It includes such types  of  contact  as

following the person, or approaching or confronting the

person,  or  appearing  at  the  persons  residence  or

workplace,  or  contacting the person by telephone,  by

mail, or by electronic communication.5

          In  Kenisons case, the State alleged that his

offense  was aggravated to first-degree stalking  under

AS  11.41.260(a)(1),  a  provision  that  elevates  the

degree of the offense when the actions constituting the

offense   are   in  violation  of  [a   protective   or

restraining]   order   issued   under   AS    18.66.100

18.66.180.

          The   indictment  returned  against   Kenison

tracked  the  language of the pertinent statutes.   The

indictment charged that on or about December  7,  2001,

...  Kenison knowingly engaged in a course  of  conduct

that  recklessly  placed another [person]  in  fear  of

death  or  physical injury, or in fear of the death  or

physical  injury of a family member[,] and the  conduct

was  in violation of an order issued under AS 18.66.100

18.66.180 ... .

          Kenison   argues  that  the   indictment   is

deficient  on  its  face because he did  not  commit  a

course  of  conduct on December 7, 2001.   He  concedes

that  the  State presented evidence that he engaged  in

non-consensual contact with Mary Ann and  A.B.  on  the

          evening of December 7th, but he argues that this

conduct was a single act, not a  course of conduct.  We

conclude,  for  three reasons, that the indictment  was

not limited to the events of December 7th.

          First,  the  indictment did not specify  that

Kenisons  offense occurred precisely on  December  7th.

Rather,  the  indictment charged that Kenisons  offense

occurred on or about December 7th.

          Second,   because  the  crime   of   stalking

requires  proof of a course of conduct, the crime  will

necessarily consist of a series of acts committed  over

time.   See  our discussion of this issue  in  Cook  v.

State,  36  P.3d 710, 720-22 (Alaska App. 2001).   When

Kenisons  indictment is read in a common-sense  manner,

in  light  of the evidence presented to the grand  jury

(which we describe below), the indictment charges  that

Kenison  engaged in a lengthy series of harassment  and

threats that culminated on December 7, 2001.

          Third,  and  most important, as  we  recently

explained in Larkin v. State, 88 P.2d 153 (Alaska  App.

2004),  the  date  of the offense  is  normally  not  a

material element of the States proof.  A deficiency  or

inaccuracy in an indictments specification of the  date

of  the offense is generally immaterial, so long as the

States  evidence reveals that the offense occurred  (1)

before  the indictment was returned and (2) within  the

applicable statute of limitations.6

          The problem is somewhat different in Kenisons

case, because he was charged with first-degree stalking

under the theory that his conduct violated a protective

order.  This means that the timing of Kenisons acts  of

non-consensual contact was potentially material.

          Even   though   Mary  Ann  obtained   several

protective  orders  against Kenison  during  the  three

years  between  their separation (in August  1998)  and

          Kenisons arrest (in December 2001), there were

significant periods of time during this three-year span

when  no protective order was in place.  To the  extent

that  Kenison engaged in acts of non-consensual contact

with  Mary  Ann  or the men she was dating  during  the

times  when there was no protective order, this conduct

could  not  form the basis for a charge of first-degree

stalking.

          We   acknowledge  that  the  superior   court

interpreted    the   first-degree   stalking    statute

differently.   The  superior court  held  that  Kenison

could properly be convicted of first-degree stalking if

any  one of his acts of non-consensual contact violated

a   protective  order.   We  disagree.   The  crime  of

stalking  requires proof of a course of  conduct   that

is,  proof  of repeated acts of nonconsensual contact.7

And  the  pertinent clause of the first-degree stalking

statute,  AS 11.41.260(a)(1), requires proof  that  the

actions constituting the offense [were] in violation of

[a protective] order.  (Emphasis added.)  Reading these

two  statutes together, we conclude that the State  was

required  to prove that Kenison engaged in a course  of

conduct   whose   constituent  acts  of  non-consensual

contact  violated one or more of the protective  orders

issued in this case.

          Nevertheless, the evidence presented  to  the

grand  jury  was sufficient to establish  that  Kenison

engaged  in  a  series of non-consensual contacts  with

Mary Ann and the man she was dating, A.B., between  May

25,  2001  (the date when the fourth set of  protective

orders first took effect) and the evening of December 7-

8,  2001 (the date of Kenisons arrest, when that fourth

set of protective orders was still in effect).

          Mary  Ann  was the principal witness  at  the

grand  jury.   She chronicled Kenisons threatening  and

          harassing behavior over the course of more than three

years.   She  also explained that she obtained  several

protective  orders against Kenison because his  actions

frightened  her, and because she feared that  he  would

harm her or the men she was dating.

          The final set of protective orders was issued

in  May  and June 2001.  (As explained above, Mary  Ann

obtained the initial 20-day protective order on May 25,

2001, followed by the six-month protective order issued

on  June  11,  2001.)   At the  grand  jury,  Mary  Ann

detailed  Kenisons many violations of these  protective

orders.  Kenison made numerous hang-up telephone  calls

to  A.B.,  he paged Mary Ann when she attended  one  of

A.B.s  musical performances, he followed Mary Ann  (and

cursed  at  her) after she had breakfast with  A.B.  on

October  28th,  he slashed A.B.s tire on December  1st,

and  he made the telephone calls to A.B.s residence  on

the   evening   of  December  7th   the  contact   that

ultimately resulted in his arrest.

          This  evidence was sufficient  to  support  a

finding  that,  in the months leading  up  to  December

2001,  while  the fourth set of protective orders  were

continuously in place, Kenison engaged in repeated acts

of  non-consensual contact with Mary Ann and A.B.  (the

man  she  was dating), and that this course of  conduct

ended  with Kenisons arrest on the evening of  December

7th-8th.   In other words, this evidence was sufficient

to   support   Kenisons  indictment  for   first-degree

stalking,  even  if  we  leave aside  all  of  Kenisons

conduct  before May 25, 2001 (when the  fourth  set  of

protective orders took effect).

          Kenison  further attacks the  sufficiency  of

the  grand  jury evidence on the basis  that  Mary  Ann

never  expressly stated that Kenisons words and actions

made her fearful.  But when the stalking statute speaks

of  a  course of conduct that places another person  in

fear of death or physical injury (or the infliction  of

death or injury on a family member), the statute is not

referring to the victims subjective feelings of  fright

or  intimidation.  Rather, the statute  requires  proof

that the victim reasonably perceived or apprehended the

threat of death or physical injury.

          We  explained  this  legal  concept  (in  the

context  of  Alaskas  assault statutes)  in  Hughes  v.

State, 56 P.3d 1088 (Alaska App. 2002):

     
          It is true that the third-degree assault
     statute  requires  proof that  the  defendant
     place[d]  another person in fear of  imminent
     serious  physical injury.  But,  as  used  in
     this statute, the word fear 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.   The victims subjective reaction  to
     this  perception is irrelevant.  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.
     
     Hughes, 56 P.3d at 1090 (footnote omitted).

          This same rule applies to the crime

of  stalking.  The State was not  obliged  to

prove  that  Kenisons conduct made  Mary  Ann

feel frightened or intimidated.  Rather,  the

State  was  obliged  to prove  that  Kenisons

conduct   caused  Mary  Ann   to   reasonably

perceive  or understand a threat of death  or

injury  to  herself or a family member.   The

evidence  presented  to the  grand  jury  was

sufficient to establish this element  of  the

offense.

          For these reasons, we conclude that

the superior court properly rejected Kenisons

challenges to the grand jury indictment.



The  trial judges decision to allow the  State  to
introduce  evidence of Kenisons entire  course  of
non-consensual contact with Mary Ann and her  male
friends,  from  the marital separation  in  August
1998  to  the time of Kenisons arrest in  December
2001


     At  Kenisons trial, Mary Ann was  allowed  to

explain  the  course  of  her  relationship   with

Kenison  from the summer of 1998 (when the  couple

separated)  to  the  events  leading  to  Kenisons

arrest  on the evening of December 7-8, 2001.   In

particular, Mary Ann described Kennisons many acts

of   non-consensual  contact  and   his   repeated

harassment and threats during this period of  more

than three years.

     Kenisons    attorney    objected    to    the

introduction  of any evidence concerning  Kenisons

conduct   before   2000.   The  defense   attorney

contended   that   this   pre-2000   conduct   was

irrelevant to the stalking charge.  The  attorneys

argument was based on the assertion that a  charge

of  stalking  requires proof of  an  uninterrupted

course of conduct.

     The   defense  attorney  pointed  out   that,

according to Mary Anns testimony, Kenison  stopped

harassing  and threatening her after she  obtained

the  third  set of protective orders in  June  and

July  1999.   Mary Ann testified that Kenison  did

not  resume his pattern of harassment and  threats

until  a  year  later, in August  2000,  when  she

started dating another man.

          Based   on   this  interruption  in  Kenisons

pattern of harassment and threats, the defense attorney

argued that Kenison had actually committed two separate

courses  of  conduct   two  separate  series  of   non-

consensual   contacts.   According   to   the   defense

attorney,  Kenison  had been indicted  solely  for  the

course  of  conduct  that  began  in  August  2000  and

culminated   in  December  2001.   Thus,  the   defense

attorney contended, evidence of Kenisons conduct  prior

to  the  summer  of August 2000 was irrelevant  to  the

issues being litigated at Kenisons trial.

          The trial judge, Superior Court Judge Michael

L.  Wolverton, rejected this argument and allowed  Mary

Ann  to  testify  about  all of  the  events  described

earlier in this opinion.

          Kenison now challenges this ruling on appeal.

Indeed,  Kenison  argues that the scope  of  admissible

evidence may have been even narrower than suggested  in

the  preceding discussion.  Kenison points out that  he

was indicted for first-degree stalking under the theory

that  his  conduct violated a protective  order  on  or

about December 7, 2001.  Based on this, Kenison asserts

that  evidence of his prior acts was relevant  only  if

that  evidence related to his conduct during  the  time

when  the fourth set of protective orders was in effect

i.e., on or after May 25, 2001.

          We addressed and rejected similar contentions

in  Petersen v. State, 930 P.2d 414 (Alaska App. 1996),

and Cook v. State, 36 P.3d 710 (Alaska App. 2001).   In

both  Peterson and Cook, we upheld trial court  rulings

that  allowed  the State to introduce evidence  of  the

defendants  acts  of non-consensual  contact  with  the

victim  even  though these acts were committed  outside

the range of time specified in the indictment.

          In  Petersen,  the State introduced  evidence

detailing  the defendants interactions with the  victim

during the 4-year period from 1989 until the defendants

arrest  on July 18, 1993, even though stalking did  not

become a crime under Alaska law until May 28, 1993 (the

effective  date  of  our  two  stalking  statutes,   AS

11.41.260 and 270).8  Petersen argued that all  of  his

contacts  with  the victim prior to May 28,  1993  were

irrelevant to the crime charged in the indictment,  and

that this evidence served only to suggest that he was a

person  of bad character.  Petersen therefore contended

that  this  evidence  should have been  excluded  under

Alaska Evidence Rules 403 and 404(b)(1).

          We  rejected Petersens contention  that  this

evidence  was irrelevant, or that it was relevant  only

to prove his bad character:

     
          The  State  was  obliged to  prove  that
     Petersen  knowingly engaged in  nonconsensual
     contact  with R.H.. Obviously, R.H.s reaction
     to   Petersens  pre-May  1993  contacts   (in
     particular,   her  explicit   directions   to
     Petersen  that  he stay away from  her)  were
     relevant  to  prove that Petersen  was  aware
     that  R.H.  did not consent to  his  post-May
     1993 contacts with her.
     
          Additionally, the State was  obliged  to
     prove  that R.H. was placed in fear of injury
     or death by Petersens post-May 1993 contacts.
     Clearly,  evidence of Petersens long-standing
     course of conduct toward R.H.  his persistent
     refusal  to stay away from her, his  repeated
     presence     at     her    workplace,     his
     middle-of-the-night trespass at her  home  in
     January  1992, and his attempt to  ram  R.H.s
     car   in   January  1993   was  relevant   to
     establish that R.H. feared injury or death at
     Petersens hands.
     
          Finally, the State was obliged to  prove
     that   Petersen   recklessly  disregarded   a
     substantial and unjustifiable risk  that  his
     conduct  would cause R.H. to fear  injury  or
     death.  Again, Petersens pre-May 1993 conduct
     was  relevant  to prove this element  of  the
     offense.
     
Petersen,  930  P.2d at 432.  Based  on  this

reasoning,  we  concluded  that  evidence  of

Petersens  pre-May  1993  contacts  with  the

victim  R.H.  was relevant for non-propensity

purposes, and that the evidence was therefore

not barred by Evidence Rule 404(b)(1).9

          We  addressed the converse  problem

in  Cook.  The defendant in Cook was  charged

with first-degree stalking for engaging in  a

series  of non-consensual contacts  with  the

victim  in  violation of a protective  order.

The indictment charged Cook with a course  of

conduct  committed between late October  1998

(when  the  protective order was issued)  and

late  December 1998 (when Cook was arrested).

The   trial  judge  allowed  the   State   to

introduce evidence that two months later,  in

February  1999,  while  Cook  was   in   jail

awaiting  trial, Cook sent another letter  to

the  victim  in  violation of the  protective

order.10

          On  appeal, Cook argued  that  this

letter  was irrelevant to the charge  against

him,  since  Cook  did not send  this  letter

until   two  months  after  the  time  period

specified  in  the  indictment.   He  further

argued  that  [t]he  only  impact  [of]  this

letter  ... was to suggest to the  jury  that

[he]  had  a propensity to engage in unwanted

contact  with  [the victim].11  We  concluded

that  [t]his is precisely why the letter  was

relevant and properly admitted:


     [The   letter]  tended  to  show   Cooks
continuing attitude toward [the victim],  his
attitude toward the protective order, and his
continuing  perception  of  his  relationship
with  [the  victim]  thus  tending  to  prove
Cooks state of mind from late October to late
     December 1998, when he committed the acts of
non-consensual  contact  with  which  he  was
charged.

Cook, 36 P.3d at 723-24.

          For   the   reasons  explained   in

Petersen  and  Cook,  we  conclude  that  the

disputed  evidence  in Kenisons  case   i.e.,

evidence     of     Kenisons    deteriorating

relationship with Mary Ann, and  evidence  of

Kenisons  series  of non-consensual  contacts

with  Mary Ann and her male friends, starting

from  the  time of the marital separation  in

August  1998   was relevant to  the  stalking

charge  against Kenison, even if that  charge

is  confined to Kenisons conduct between  May

and  December  2001 (when the fourth  set  of

protective  orders was in  effect).   Because

this evidence was relevant for non-propensity

purposes, it was not barred by Evidence  Rule

404(b)(1).

          Kenison alternatively argues  that,

even if this evidence was admissible for non-

propensity purposes, Judge Wolverton erred by

not  evaluating the various portions  of  the

evidence  under  Evidence  Rule  403    i.e.,

balancing the probative value of each portion

against  its potential for unfair  prejudice.

Kenison  claims that Judge Wolverton  utterly

failed to assess the admissibility of any  of

the evidence under Rule 403.

          The  record does not bear out  this

claim.  Instead, the record shows that  Judge

Wolverton  repeatedly engaged in a  Rule  403

balancing process before deciding whether  to

allow the State to introduce various portions

of this evidence.

          Moreover,  Kenisons  assertion   of

unfair  prejudice is basically a  reiteration

of   his   claim   that  the   evidence   was

irrevelant.  As we have explained  here,  the

evidence  was in fact relevant.  Kenison  has

made   no   effort  to  identify   individual

portions of this evidence and show that these

particular  portions posed a specific  danger

of unfair prejudice.  We accordingly conclude

that  Kenison has failed to demonstrate  that

he was unfairly prejudiced by this evidence.

          Finally,  Kenison argues  that  the

admissibility of the disputed evidence should

be  evaluated  by retroactively applying  the

standards  we recently announced in  Bingaman

v.  State,  76 P.3d 398 (Alaska  App.  2003).

But  Bingaman is not pertinent to  the  issue

presented here.

          In   Bingaman,   we  examined   and

construed  Alaska Evidence Rule 404(b)(4),  a

rule   that   applies  to  prosecutions   for

domestic  violence and that allows the  State

to  introduce propensity evidence that  would

otherwise   be   barred  by   Evidence   Rule

404(b)(1).   But, as we have just  explained,

the  evidence  of Kenisons relationship  with

Mary  Ann, and the evidence of his prior acts

of   non-consensual  contact  with  her   and

her   male   friends,  was   not   propensity

evidence.   This  evidence was  relevant  for

purposes   other   than  to  prove   Kenisons

character, and it was therefore not barred by

Evidence Rule 404(b)(1).

          Bingaman addresses the scope of the

exceptions   to   Evidence   Rule   404(b)(1)

primarily, the exception codified in Evidence

Rule  404(b)(4) and, to a lesser extent,  the

exceptions   codified   in   Evidence   Rules

404(b)(2), and (b)(3).  The disputed evidence

in   Kenisons  case  was  admissible  without

regard  to  any of these exceptions  to  Rule

404(b)(1).   Thus, Bingaman is not  pertinent

to Kenisons case.



The superior courts decision to allow the State to
amend the stalking charge at the close of Kenisons
trial


     Under  Alaska  Criminal Rule  7(e),  a  trial

judge  has  the authority to allow  the  State  to

amend  the indictment at any time before the  jury

returns its verdict, so long as the amendment does

not  alter  the indictment to charge an additional

or different offense, and so long as the amendment

does  not prejudice the substantial rights of  the

defendant.

          As  discussed  earlier,  Kenisons  indictment

charged him with engaging in a course of conduct on  or

about  December  7, 2001.  Toward the end  of  Kenisons

trial,  after  the  State had introduced  the  evidence

discussed  in  the preceding section  of  this  opinion

(i.e.,  the history of Kenisons acts of harassment  and

threats   against  Mary  Ann  and  her  male   friends,

beginning  in  August 1998), Judge Wolverton  permitted

the  State  to amend the indictment so that it  charged

Kenison  with  engaging in a course of conduct  between

1998 and December 7, 2001.

          Kenisons attorney objected to this amendment.

The  defense  attorney noted that Kenison  was  charged

with   first-degree  stalking  under  the  theory  that

Kenisons course of conduct violated a protective order.

The   defense  attorney  further  noted  that,  if  the

indictment was amended to describe the time  period  as

between  1998  to  December 7,  2001,  the  jury  might

convict  Kenison for engaging in acts of non-consensual

contact  during  periods  of time  when  there  was  no

protective order in effect.

          Judge    Wolverton   rejected   the   defense

attorneys argument, concluding that it was premised  on

a   misunderstanding  of  the  law.   As  we  explained

earlier,  Judge  Wolverton construed  the  first-degree

stalking  statute as requiring the State to prove  that

at least one of Kenisons acts of non-consensual contact

violated  a  protective  order.   The  judge  therefore

stated that he would allow the indictment to be amended

so that it charged Kenison with engaging in a course of

conduct between 1998 and December 7, 2001.

          Despite  this  ruling, the indictment  itself

was  never amended.  The State did not issue an amended

indictment  (i.e.,  a new charging  document);  indeed,

when  Judge  Wolverton gave the jurors the  instruction

that  recapitulated the indictment, the  judge  tracked

the  original language of the indictment:  that  on  or

about  December 7, 2001, at or near Anchorage,  in  the

Third  Judicial District, Joel Morris Kenison knowingly

engaged  in a course of conduct that recklessly  placed

another in fear of death or physical injury, or in fear

of the death or physical injury of a family member, and

the conduct was in violation of [a protective] order.

          Rather,   Judge  Wolverton  implemented   his

ruling  by altering the wording of the jury instruction

that listed the elements of first-degree stalking.   In

this  instruction, Judge Wolverton told the jurors that

the State was obliged to prove:

     
          First,   that  the  event  in   question
     occurred on or about December 7, 2001, at  or
     near Anchorage, Alaska;
     
          Second,   that   Joel   Morris   Kenison
     knowingly  engaged  in a  course  of  conduct
     between 1998 and December 7, 2001;
     
          Third,   that  this  course  of  conduct
     recklessly placed another person,  [Mary  Ann
     Kenison], in actual fear of death or physical
     injury,  or  in  actual  fear  of  death   or
     physical injury of a family member;12 and
     
          Fourth,   that   Joel   Morris   Kenison
     recklessly violated a protective order issued
     under AS 18.66.100 through 18.66.180.
     
     (Added emphasis in the second paragraph.)

               (In  various conversations with the

     attorneys, Judge Wolverton explained that  he

     intended  this instruction to communicate  to

     the  jurors  that the State  was  obliged  to

     prove  (1) that on December 7, 2001,  Kenison

     caused  Mary  Ann to fear death  or  physical

     injury,  either  for  herself  or  a   family

     member,  and (2) that Mary Anns fear on  that

     day  was  based on Kenisons course of conduct

     between 1998 and December 7, 2001.)

          On appeal, Kenison again challenges

Judge  Wolvertons  decision  to  allow   this

amendment  of  the charge.  However,  Kenison

does  not renew the objection that he  raised

in the superior court  the objection that, if

the time span was broadened to include all of

Kenisons  conduct between 1998  and  December

2001, the jury might convict Kenison based on

acts   that  were  not  committed   while   a

protective  order  was in  effect.   Instead,

Kenison  now  argues  that  Judge  Wolvertons

ruling  prejudiced his rights under  Evidence

          Rule 404(b).

          Specifically, Kenison asserts  that

Judge  Wolvertons ruling undercut the defense

position  that all evidence of Kenisons  acts

prior to May 2001 was irrelevant and unfairly

prejudicial.  According to Kenisons appellate

brief,   [Judge  Wolvertons]   decision   ...

transformed  [this] evidence from  irrelevant

to   the   corpus   of   the   charge,   thus

nullif[ying] the entire defense argument that

all   these  other  instances  [of   Kenisons

behavior]   were  inadmissible  Rule   404(b)

material.

          Kenisons argument ignores the  fact

that  Judge  Wolverton made this ruling  long

after  he ruled that the State could  present

the  disputed evidence of Kenisons harassment

and  threats  beginning in August  1998.   In

other  words, Judge Wolverton did  not  amend

the  wording  of the charge in an  effort  to

justify   a   planned  decision   about   the

admissibility of this evidence.   Rather,  he

amended  the charge so that it would  conform

to the evidence that he had earlier admitted.

          Moreover,  as we explained  in  the

preceding  section  of  this  opinion,  Judge

Wolvertons  previous rulings concerning  this

evidence were correct.  The disputed evidence

was relevant for non-propensity purposes, and

it  was therefore not barred by Evidence Rule

404(b)(1).   This would remain true  even  if

Judge   Wolverton   had  refused   to   allow

amendment of the indictment, or if the  judge

had  amended  the indictment to include  only

the  time period from May 25, 2001 (when  the

fourth  set of protective orders took effect)

to  December 7, 2001 (Kenisons last  acts  of

non-consensual contact before his arrest).

          That  being  said, we believe  that

Kenisons   original   objection   to    Judge

Wolvertons ruling was well-founded.   Because

the  jury  was told that Kenisons  course  of

conduct  could include any acts he  committed

between 1998 and December 7, 2001, there  was

a  danger that the jury might convict Kenison

based  on acts that were committed when there

was  no  protective order in effect.   As  we

explained earlier, the State was required  to

prove  that all of the acts of non-consensual

contact comprising Kenisons course of conduct

were  committed in violation of a  protective

order.

          However,  Kenison does  not  pursue

this  argument on appeal.  Moreover, even  if

he   had  pursued  this  argument,  we  would

conclude  that  the error was harmless  under

the facts of this case.

          Although    the   State   presented

evidence  of  Kenisons pattern of  harassment

and  threatening behavior beginning in August

1998,  a  substantial portion of  the  States

case  focused  on Kenisons conduct  following

the  issuance of the fourth set of protective

orders on May 25, 2001.

          Moreover, Kenisons defense at trial

was  not  based on any purported  distinction

between his pre-May 2001 conduct and his post-

May  2001  conduct, nor was it based  on  the

assertion that Kenison was innocent of any of

this  conduct.  Rather, the defense  attorney

argued  that  even  though Kenison  may  have

engaged in a lengthy series of non-consensual

contacts with Mary Ann and A.B., this conduct

did not cause either Mary Ann or A.B. to fear

death or physical injury.

          The defense attorney told the jury,

Joel  Kenison  was  a nuisance,  and  nothing

more.   And  [Mary Ann] knew it.  [And  A.B.]

knew it.  The defense attorney suggested that

Mary  Ann and A.B. had become frustrated  and

fed  up with Kenisons behavior, to the  point

where  they  decided  to  press  charges  and

assert   falsely  that Kenisons  conduct  had

caused them to fear death or injury.

          Kenison  does not suggest,  nor  is

there  any  indication in  the  record,  that

Kenison   would  have  pursued  a   different

defense  to  the  stalking  charge  if  Judge

Wolverton  had accepted the defense attorneys

argument.   That  is,  there  is  nothing  to

suggest that Kenisons defense would have been

any  different if Judge Wolverton had  agreed

with  Kenison  that  the time  period  should

extend no farther back than May 25, 2001 (the

date  on  which the fourth set of  protective

orders  took effect).  Accordingly,  even  if

Judge  Wolverton  should  have  defined   the

relevant time period as between May 25,  1991

and  December 7, 2001, Kenison was not harmed

by this error.13



The trial judges refusal to declare a mistrial after
the  prosecutor  argued to the jury  that  Kenison
might  be  convicted of stalking  if  his  conduct
caused  Mary Ann to fear that Kenison might commit
suicide


     During   her  summation  to  the  jury,   the

prosecutor addressed the States need to prove that

Kenisons conduct caused Mary Ann to fear death  or

physical  injury to herself, or to fear  death  or

physical   injury   to  a  family   member.    The

prosecutor noted that the statutory definition  of

family   member   was  quite  broad    that   this

definition included the people that the victim was

dating, and even the victims former spouse.14  The

prosecutor  then suggested to the  jury  that,  in

Kenisons case, this element could be satisfied  by

proof  that Mary Ann was afraid that Kenison might

kill  himself.  (There was evidence that,  in  the

months  following their breakup  in  August  1998,

Kenison had threatened to commit suicide.)

          Kenisons    defense   attorney    immediately

objected,  arguing that the prosecutor was wrong  as  a

matter  of  law   and that even if the  prosecutor  was

conceivably  correct on this point of law, Kenison  had

never  before  received  notice  that  the  State   was

pursuing  Kenisons  case on this theory.   The  defense

attorney told Judge Wolverton,

     
          Defense  Attorney:  If [that  theory  of
     the offense is] going to be [presented to the
     jury],  I  ask for a mistrial so  we  can  be
     prepared  to  meet  that  [theory]  as  well.
     Because  we  didnt even question  [Mary  Ann]
     about    her   [potential]   concern    about
     [Kenison], because that was never an issue in
     this trial.  It cannot be an issue now.
     
               Judge   Wolverton,  too,  expressed

     surprise that the prosecutor was arguing this

     theory of the law.  The judge instructed  the

     prosecutor not to address that point again in

     front  of  the jury, and the judge  announced

     that the matter would be taken up at the next

     break.   The  prosecutor then proceeded  with

               her argument.  She never mentioned this

     theory again, either in the remainder of  her

     initial   summation  or   in   her   rebuttal

     although  she did suggest to the jurors  that

     Kenisons threats of suicide were relevant  to

     the   extent  that  they  could  explain  the

     reasonableness of Mary Anns fear that Kenison

     was  becoming unpredictable and that he might

     hurt  her, or their children, or the men  she

     was dating.

               When  the  prosecutor finished  her

     initial  summation, Judge Wolverton called  a

     recess,  and the parties discussed the  issue

     of  whether the offense of stalking might  be

     proved   by  showing  that  the  perpetrators

     course  of conduct caused the victim to  fear

     that the perpetrator might commit suicide  or

     otherwise  harm themself.  Kenisons  attorney

     renewed  his objections (1) that the  statute

     did  not cover such a situation, and (2) that

     Kenison had received no notice that the State

     would be pursuing this theory.

          The   prosecutor  argued  that  the

statute  could  reasonably be interpreted  to

cover  Kenisons threats of suicide (since  he

was  the  victims  former  spouse),  but  the

prosecutor stated that she was willing to not

make  that  argument again.  Judge  Wolverton

replied that he thought the statute could  be

read  as the prosecutor suggested, but  Judge

Wolverton   also   ruled  that,   under   the

indictment, the issue was Mary Anns state  of

mind  on December 7, 2001  i.e., whether Mary

Ann  thought that Kenison was threatening  to

commit suicide that night.

          The  judge  noted  that  there  was

uncontroverted  testimony  that  Kenison  had

threatened suicide three years before  (i.e.,

shortly  after  the marital breakup,  in  the

fall  of  1998).   But when  Judge  Wolverton

wondered  aloud  whether the  prosecutor  was

going  to  assert  that, on  the  evening  of

December  7,  2001,  Mary  Ann  feared   that

Kenison  was  going  to commit  suicide,  the

prosecutor  responded, thats not my  argument

for that day.

          The  defense  attorney  then  asked

Judge  Wolverton to instruct  the  jury  that

they  could  not  consider  Kenisons  earlier

threat to commit suicide as proof of the fear

of  death  or injury element of the  offense.

Judge  Wolverton replied, You can  make  your

argument  [to  the jury], and  I  dont  think

[that]  the  State  is going  to  rebut  your

argument  ...  .   [A]s  a  matter  of   law,

[Kenisons suicide threat] could be [the basis

for  a  fear of death or injury to  a  family

member].  [But] its a matter of whether [that

theory]  was factually proved, and the  State

isnt even asserting that [it was].

          After  further  comments  from  the

attorneys, Judge Wolverton decided  that  the

matter  should  be resolved  by  letting  the

parties clarify the issue in argument:


     The  Court:   Im going to  leave  it  to
argument.   [The  prosecutor]  is  indicating
that  shes not asserting that that was  [Mary
Anns]  concern  on  December  7th.   And  you
[i.e.,  the defense attorney] can  make  that
clear in your argument.  And, apparently, its
not going to be rebutted.
          On  appeal,  Kenison  renews his  argument  that  Judge

Wolverton  should have declared a mistrial after  the  prosecutor

argued  that Kenisons threat of suicide could form the basis  for

Mary Anns fear of injury or death to a family member.

          Kenison notes that, even after the bench conference  we

have  described, the prosecutor told the jury two more times that

Kenisons  threat  to commit suicide was one of the  factors  that

might  reasonably have caused Mary Ann to fear that  Kenison  was

acting  unpredictably or uncontrollably.  This is true,  but  the

prosecutors comments were proper.

          The  transcript reveals that the prosecutor never again

argued  that Kenison might be convicted based on proof that  Mary

Ann  feared for Kenisons safety on December 7, 2001.  Rather, the

prosecutor  argued that on the evening of December 7, 2001,  Mary

Ann  feared that Kenison might injure her or might injure the man

she  was  dating, A.B..  The prosecutor further argued that  Mary

Anns  fear  was  reasonable, based on the whole  history  of  her

dealings  with  Kenison since the marital breakup  including  his

threat of suicide in 1998.

          We conclude that Kenisons threat of suicide was in fact

relevant  to  evaluating the reasonableness of  Mary  Anns  fear,

since it was one factor (among many) indicating that Kenison  was

distraught   over  the  marital  breakup,  that  he  was   acting

unpredictably or uncontrollably in matters concerning  Mary  Ann,

and  that, because of his emotional state, he might hurt her,  or

their children, or the men she was dating.

          This  is not to say that we endorse the States position

that  a  person can be convicted of stalking based on proof  that

the  persons conduct caused their former spouse to fear that they

might  commit suicide.  It is true, as the State notes, that  the

statutory  definition of family member includes  former  spouses.

However,  as we explained in Petersen v. State, the gist  of  the

offense   of   stalking  is  assaultive  behavior.15    We   have

substantial  doubts whether the legislature,  when  enacting  the

stalking  statutes,  intended to have people  convicted  of  this

crime  based  on someone elses fear that they might  do  violence

          solely to themselves.

          But  we  need not resolve this issue in Kenisons  case.

As  explained above, after the defense attorney objected  to  the

prosecutors argument that fear for the safety of a family  member

might include fear that a former spouse would commit suicide, the

prosecutor  promised not to repeat that argument   and  she  kept

that  promise.  All of the prosecutors ensuing arguments on  this

topic  focused on the assertion that, on December 7,  2001,  Mary

Ann  reasonably  feared that Kenison might harm her  or  that  he

might harm her boyfriend, A.B..  The prosecutor did not return to

the  contested argument that Kenison could be convicted  if  Mary

Ann feared for Kenisons safety.

          The  defense  attorneys arguments to the jury  likewise

focused on Mary Anns alleged fear that Kenison would either  hurt

her or would hurt A.B..  As we explained in the preceding section

of  this  opinion, the defense attorney argued that Mary Ann  was

trying to use the judicial process for fraudulent purposes.   The

defense  attorney suggested that Mary Ann did not  actually  fear

that  Kenison would hurt anyone  and that she was falsely  saying

that  she  feared  for her safety so that she  could  be  rid  of

Kenison and his annoying behavior.

          Given this record, we conclude that Judge Wolverton did

not  abuse  his  discretion when he denied the defense  attorneys

request  for  a  mistrial.  In the alternative, we conclude  that

Kenison  has  failed  to  show that he was  prejudiced  by  Judge

Wolvertons failure to declare a mistrial.



The   trial  judges  refusal  to  give  the   jury   an
instruction further explaining the meaning of fear


          During  the  jurys deliberations, the  jurors

asked  for  a  definition  of  the  term  fear.   After

consulting  the  parties,  Judge  Wolverton  told   the

jurors:

     
          Because there is no legal definition  of
     the  word fear in our statutes, you as a jury
     are  to  assign the meaning you  collectively
     believe  should  be assigned [to  this  word]
     according  to what you determine  to  be  the
     common experience of mankind.
     
               Although there is no indication  in

     the record that Kenisons attorney objected to

     Judge  Wolvertons answer to the jury, Kenison

     now  claims that Judge Wolverton should  have

     answered  differently  that the judge  should

     have instructed the jurors on the meaning  of

     fear,  and that this instruction should  have

     expressly  stated (1) that  the  victim  must

     actually  feel fear, and (2) that  this  fear

     must be reasonable.

               Because  Kenisons claim  is  raised

     for  the  first time on appeal, he must  show

     plain error.  Judge Wolvertons answer to  the

     jurors was in fact erroneous, but we conclude

     that  this  error  did not  amount  to  plain

     error.  That is, the error did not manifestly

     prejudice the fairness of the proceedings.

               As  we  explained earlier  in  this

     opinion,  the stalking statute does  not  use

     the word fear in its everyday sense.  Rather,

     the   statutory  phrase  fear  of  death   or

     physical  injury means that  the  State  must

     prove  that  the victim reasonably understood

     or  perceived a threat of death  or  physical

     injury.

          However,   the   error   in   Judge

Wolvertons  answer favored Kenison.   If  the

jurors  employed the everyday  definition  of

fear   i.e.,  if they required the  State  to

prove   that  Mary  Ann  experienced   actual

anxiety  and agitation caused by the presence

or  nearness of danger, or dread, or  terror,

or fright16  this would have put the State to

a   higher  burden  of  proof  than  the  law

actually requires.

          We  accordingly conclude  that  the

error was harmless.



Conclusion


     The  judgement  of  the  superior  court   is

AFFIRMED.



_______________________________
     1AS 11.41.260(a).

2AS 11.41.270(b)(1).

3AS 11.41.270(b)(2).

4AS 11.41.270(b)(3).

5Id.

6Larkin, 88 P.3d at 156-57.

7AS 11.41.270(b)(1).

8Petersen, 930 P.2d at 420-21 & 432.

9Id.

10Cook, 36 P.2d at 714-15 & 723.

11Id. at 723.

12We  have  previously criticized the wording used  in  this
third  paragraph;  see  Cook  v.  State,  36  P.3d  at  718.
However,  Kenison  does not challenge this  portion  of  the
instruction.

13See Houston v. Anchorage, 59 P.3d 773, 777-78 (Alaska App.
2002),  and  Hosier v. State, 1 P.3d 107,  109  (Alaska
App.  2000), where we upheld trial judges decisions  to
amend  charging documents under Criminal Rule 7(e),  in
large  measure  because  we  were  convinced  that  the
amendments  had no effect on the defendants  litigation
of their cases.

14AS 11.41.270(b)(2)(D).

15Petersen, 930 P.2d at 431.

16Websters New World Dictionary of American English (Third
College Edition, 1988), p. 495.