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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
| JEREMY V. WILLIAMS, | ) |
| ) Court of Appeals No. A-10115 | |
| Appellant, | ) Trial Court No. 4FA-06-02543 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2230 August 21, 2009 |
| ) | |
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Randy M. Olsen,
Judge.
Appearances: Gary L. Stapp, The Law Office
of Gary L. Stapp, Inc., Fairbanks, for the
Appellant. Eric A. Ringsmuth, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
COATS, Chief Judge.
Jeremy V. Williams was charged with felony driving
under the influence1 based on an incident where he crashed his
motorcycle near Fairbanks. Superior Court Judge Randy M. Olsen
presided over Williamss trial. Under the procedure set out in
Ostlund v. State,2 Williamss trial was bifurcated so that the
jury would not be informed of his prior convictions for driving
under the influence before it decided whether he had driven under
the influence on that particular occasion.
After Williams testified on direct examination, his
attorney asked the court to instruct the jury on the lesser
included offenses of reckless driving and negligent driving.
Judge Olsen agreed that Williams was entitled to the instructions
on the lesser included offenses but ruled that the State would
then be entitled to bring in [Williamss] previous convictions for
[driving under the influence] to show his knowledge and to
establish ... recklessness. Williams objected, arguing that his
prior convictions were inadmissible because they merely tended to
show his propensity to drive under the influence. But Judge
Olsen rejected Williamss argument, and Williams then withdrew his
request for the instructions. Williamss prior driving under the
influence convictions were not admitted into evidence. The jury
ultimately convicted Williams.
On appeal, Williams argues that Judge Olsen erred in
ruling that, if he instructed the jury on the lesser included
offenses of reckless driving and negligent driving, the State
would be entitled to introduce Williamss prior convictions for
driving under the influence. We hold that because Williams
withdrew his request for the instructions and because the State
never introduced Williamss prior convictions for driving under
the influence, Williams has not preserved this issue for appeal.
Why we hold that Williams has not preserved this
issue for appeal
In general, appellate courts do not review hypothetical
rulings. For instance, in State v. Wickham,3 the Alaska Supreme
Court held that a defendant who declines to testify after the
trial court rules that he could be impeached by prior convictions
abandons any claim that the trial courts ruling was erroneous.4
Similarly, in Sam v. State,5 the defendant abandoned his
diminished capacity defense after the trial court ruled that
certain evidence would be admissible if he advanced that
defense.6 We held that the defendants abandonment of his
diminished capacity defense precluded review of the trial courts
evidentiary ruling.7 We have applied the rule set out in Wickham
and Sam in numerous unpublished opinions, holding each time that
the defendant had not preserved his objection to a conditional
evidentiary ruling.8
The above cases point out several reasons why any
appellate decision in these circumstances would be hypothetical
and would require an appellate court to speculate on whether an
appellant was prejudiced by the challenged ruling.9 First, we
cannot be sure that Williams withdrew his request for lesser
included offense instructions solely because of Judge Olsens
ruling. Second, had Williams persisted in this request, Judge
Olsen might have changed his ruling or the State might have
decided not to introduce evidence of Williamss prior convictions.
Third, in the event that the trial court had allowed the State to
introduce Williamss prior convictions, we would have had a record
from which to determine whether, assuming this was error, the
error was harmless. Without this record, any harmless error
analysis would be inherently speculative.10 Under these
circumstances, we conclude that Williams has not preserved his
objection to Judge Olsens ruling for appeal.
Williams points out that after Judge Olsen ruled that
lesser included offense instructions would open the door to
evidence of his prior convictions for driving under the influence
and Williams stated that he was withdrawing his request under
protest, Judge Olsen replied, Okay. Youll have that preserved
if need be. Williams argues that he relied on Judge Olsens
statement to conclude that he had preserved his argument for
appeal. In context, Judge Olsens comment was most likely a
simple acknowledgment that Williams had made a statement for the
record that he was withdrawing his request for lesser included
offense instructions because of Judge Olsens ruling. But, as we
have stated, because Williams withdrew his request for lesser
included offense instructions, Williams did not preserve Judge
Olsens ruling for appellate purposes. Moreover, Judge Olsen had
no authority to exempt Williams from the rule announced in
Wickham and Sam.
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 28.35.030(n).
2 51 P.3d 938 (Alaska App. 2002).
3 796 P.2d 1354 (Alaska 1990).
4 Id. at 1358.
5 842 P.2d 596 (Alaska App. 1992).
6 Id. at 598.
7 Id. at 598-99.
8 See, e.g., Melovedoff v. State, Alaska App. Memorandum
Opinion and Judgment No. 5031 (Jan. 18, 2006), 2006 WL 120168;
Coleman v. State, Alaska App. Memorandum Opinion and Judgment No.
4887 (June 23, 2004), 2004 WL 1418700; Elze v. State, Alaska App.
Memorandum Opinion and Judgment No. 3631 (July 16, 1997), 1997
WL 401579; Reid v. State, Alaska App. Memorandum Opinion and
Judgment No. 2825 (Dec. 15, 1993), 1993 WL 13157160.
9 See Wickham, 796 P.2d at 1356-58; Sam, 842 P.2d at 599.
10 See Wickham, 796 P.2d at 1357.
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