author: MANNHEIMER, Judge.

text:
    Mark E. COPELAND, Appellant, v. STATE of Alaska, Appellee.
    No. A-7400.
    Court of Appeals of Alaska.
    May 30, 2003.

      Bill D. Murphree, Fairbanks, for Appellant.
    Rosamund M. Lockwood, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for Appel-lee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

In the summer of 1996, Mark E. Copeland began a sexual relationship with a thirteen-year-old girl, J.S. Copeland was thirty-nine years old at the time. Sometime that fall, J.S.'s parents began to suspect that something was amiss. When they searched J.S.'s room and read her diary, their fears were confirmed. They then forbade J.S. to see Copeland.

J.S. secretly continued her relationship with Copeland, skipping classes and leaving school to engage in trysts with him. In December 1996, frustrated by the restrictions that her parents were placing on her, J.S. ran away from home. Copeland arranged for J.S. to stay at a series of residences, all owned by acquaintances of his. Then, in March, Copeland (using an assumed name) rented an apartment for J.S. J.S. lived in this apartment for six months (and continued her sexual relationship with Copeland when he visited her). Finally, in September 1997, the apartment manager contacted the police.

Copeland was indicted for kidnapping and eleven counts of second-degree sexual abuse of a minor (i.e., engaging in sexual penetration with a child between the age of thirteen and sixteen) Copeland's first trial ended in a hung jury on all counts except one count of sexual abuse of a minor. (Copeland was acquitted of this count.) At his second trial, Copeland was acquitted of kidnapping but convicted of the lesser offense of contributing to the delinquency of a minor. Of the ten remaining counts of second-degree sexual abuse of a minor, Copeland was convicted of nine and acquitted of one. For these crimes, Copeland received a composite sentence of:11 years' imprisonment with 3 years suspended-8 years to serve.

In this appeal, Copeland challenges five different evidentiary rulings made at his trial. He also contends that his sentence is excessive. For the reasons explained here, we affirm Copeland's convictions and his sentence.

The partial disclosure of J.8.'s diary to the defense

When J.S.'s parents read her diary and discovered that it contained evidence that their daughter was engaging in sexual relations with Copeland, they turned the diary over to the police. The police perused the diary, identified what they believed to be the relevant portions, and turned those portions over to the district attorney's office. Following Copeland's indictment, the district attorney's office provided Copeland's defense attorney with a copy of what they had.

Suspecting that other portions of the diary might contain exeulpatory or explanatory material, Copeland's attorney asked the superior court to compel production of the entire diary. Before Copeland's first trial, Superior Court Judge Niesje J. Steinkruger examined a photocopy of the complete diary. Based on her in camera examination, Judge Steinkruger ordered additional pages of the diary to be produced to the defense, but she declined to order production of the diary in its entirety.

During Copeland's second trial, his attorney renewed his request for production of the complete diary. This issue arose because J.S. testified that she had altered certain portions of the diary at Copeland's instruction. Copeland's attorney asserted that, if a document expert examined the diary, the examination would prove that J.S. was lying about altering the diary. Superior Court Judge pro tem Sigurd E. Murphy ruled that a document examiner would be allowed to examine the diary for physical alteration (or lack of physical alteration), but the expert would be ordered not to disclose the contents of any pages that the court had not released. (The record contains no indication that Copeland's attorney ever pursued this opportunity to have a document expert examine the diary.)

Copeland's attorney also asked the court to compel production of anything in the diary relating to J.S.'s dissatisfaction with her life at home; the defense attorney argued that these passages might be relevant to the kidnapping charge. Judge Murphy subsequently ordered production of several other pages, but still not the entire diary.

On appeal, Copeland argues that more of the diary should have been disclosed to him. He notes that, on one of the diary pages he received, J.S. wrote: "I keep telling people that things happened with him and me when I was down there, but nothing did happen. I need to stop lying." Copeland suggests that there must be other pages that contain similar statements relevant to J.S.'s eredibility. However, we have examined the diary and we agree with Judges Steinkruger and Murphy that there are no other portions that bear on this issue.

Copeland also argues that Judges Stein-kruger and Murphy had no authority to bar him from seeing any portion of the diary because J.S. (the author of the diary) never personally asserted a right to privacy in the diary. Rather, it was the district attorney's office that invoked J.S.'s right to privacy. Copeland contends that, absent a personal request for privacy from J.S. herself, the superior court had no authority to prevent Copeland from obtaining the diary.

But this argument works both ways. It was obvious that J.S. could claim a right of privacy in her diary, and Copeland's attorney never asserted that J.S. was willing to waive that right of privacy, nor did he ask the superior court to pose this question to J.S.

In any event, we conclude that this issue is moot. In Spencer v. State, 642 P.2d 1871 (Alaska App.1982), this Court confronted this same argument: that a trial judge committed error by invoking a victim's right to privacy when the victim had not personally asserted that right. In Spencer, we concluded that any arguable error was harmless, since the trial judge had correctly concluded that the excluded information was not relevant. Id. at 1376.

We reach the same conclusion in Copeland's case. When the superior court declined to give Copeland access to the complete diary, the court did not rely on the theory that, even though the exeluded portions were relevant, they were protected by an overriding right of privacy. Rather, the superior court concluded that these portions were not relevant. Having examined these portions of J.S.'s diary, we agree.

Next, Copeland argues that, given J.S.'s testimony that she altered certain portions of the diary, both the defense attorney and the jury were entitled to inspect the entire physical document to see if there was evidence of physical tampering. But as we explained above, when this issue surfaced at Copeland's trial, Judge Murphy offered to let a document examiner (chosen by the defense) examine the entire diary. This was a reasonable way of reconciling the competing interests-allowing the defense to investigate the possibility of physical alteration while at the same time preserving J.S.'s privacy in the content of the diary, to the extent that this content was irrelevant. Copeland chose not to pursue Judge Murphy's offer.

We therefore conclude that Judge Murphy committed no error when he revealed only parts of J.S.'s diary to the defense.

Finally, Copeland argues that he was prejudiced because, even though Judge Murphy released additional pages of the diary to the defense during Copeland's second trial, the defense should have had access to those same pages during Copeland's first trial. Copeland suggests that if Judge Steinkruger had released those extra pages to him during the first trial, the result of that first trial might have been different.

Copeland's argument is completely speculative. Without knowledge of these additional pages, Copeland's attorney was able to fight the State to a draw at the first trial: a hung jury on all but one count, and an acquittal on that one count. At the second trial, when the defense attorney had access to the extra pages of the diary, Copeland was convicted of nine counts of sexual abuse and also of contributing to the delinquency of a minor. We therefore conclude that Copeland has failed to show that he was prejudiced by Judge Steinkruger's narrower disclosure of the diary at the first trial.

In a related argument, Copeland contends that Judge Murphy committed error by "testifying" about the diary. In his opening brief to this Court, Copeland asserts that, "rather than allow[ing] the jury and the defendant to examine the diary pages, the [triall judge described from the bench ... what pages were missing from the diary, and on what pages mark-outs and erasures seemed to exist". Copeland argues that, by telling the jury these things, Judge Murphy "became a witness in the case he was judging".

But as the State pointed out in its responding brief, Copeland's appellate attorney failed to provide any transeript citations to support this claim of judicial misconduct. The State further asserted that, "[alfter a thorough review of the record", the State was unable to identify "any portion of the trial where the court simply described evidence for the jury”.

The event that most closely approximates Copeland's claim of misconduct occurred when photocopied pages of J.S.'s diary were admitted into evidence. These pages had been redacted when they were photocopied; they did not include portions of the diary that Judge Murphy had ruled were irrelevant. For this reason, when these pages were introduced into evidence, Judge Murphy pointed out to the jurors that certain parts of these pages were missing, and he instructed the jurors not to speculate about the contents of the missing portions.

Copeland's reply brief omits any mention of this issue. We take this as a concession by Copeland's appellate attorney that his claim of judicial misconduct is not supported by the record.

We take this opportunity to remind Copeland's appellate attorney (and all attorneys) that under Alaska Civil Rule 11, "an attorney's signature on a document filed with a court constitutes the attorney's certificate that the assertions of fact contained in the document are well-grounded 'to the best of the signer's knowledge, information, and belief formed after reasonable inquiry. } An attorney's good faith belief concerning the facts of the case is not enough to satisfy Civil Rule 11. Rather, an attorney is obliged to make objectively reasonable efforts to ascertain the facts of the case before making assertions of fact in court documents.

Copeland's argument that this Court should overrule or limit our decision in Covington v. State

Copeland was convicted of nine counts of sexual abuse of a minor, each count alleging an act of sexual penetration with J.S. (who was under the age of 16). One of these counts alleged that the act of sexual penetration occurred on a specific day ("on or about September 12, 1996"), but the other counts alleged that the act of sexual penetration occurred during a particular month-or, in the case of one count, during a particular two months.

On appeal, Copeland argues that this lack of specificity in a charging document should not be allowed because it effectively precludes a defendant from asserting the defense of alibi. Copeland concedes that, in Covington v. State, 708 P.2d 486, 488-40 (Alaska App.1985), we addressed and rejected a similar contention. Nevertheless, Copeland argues that Covington was wrongly decided and "fatally flawed". He urges us to overrule Covington outright, or at least declare that Covington will not apply when a defendant wishes to claim alibi.

Copeland's brief neglects to mention that he did not raise this claim in the superior court. More precisely, Copeland's attorney never told the trial judge that Copeland wished to pursue a defense of alibi and that, because of this, Copeland would arguably be prejudiced by the indiectment's lack of specificity regarding the dates on which the acts of unlawful sexual penetration occurred.

Copeland's failure to raise this claim in the superior court means that he must demonstrate plain error to prevail on appeal. And Copeland's failure to offer evidence of alibi (or even make an offer of proof concerning a contemplated alibi defense) means that he can not show plain error.

Because the trial court record does not show that Copeland had an alibi defense to assert, Copeland is asking us to reverse his convictions based on speculation that (1) he might have pursued an alibi defense and that, had Copeland brought this problem to the attention of Judge Murphy, (2) the judge would have done nothing to require the State to describe the counts with more specificity-either by narrowing the dates of the various offenses, or by supplying other descriptive information that would have helped to identify those offenses with greater particularity.

In Sam v. State, 842 P.2d 596, 599 (Alaska App.1992), this Court declared that we will not engage in the exercise of trying to ascertain potential prejudice to a defendant "in a purely hypothetical or abstract context". Here, Copeland never relied on a defense of alibi, nor did he even make an offer of proof concerning a contemplated defense of alibi, nor did he seek relief from the trial judge. Thus, there is no indication in the record that Copeland was prejudiced by the arguable lack of specificity in the indictment. As we said in Sam, "[aluy attempt to divine the likely effect of the alleged error in these cireumstances would amount to pure speculation." l

For this reason, we decline Copeland's invitation to re-examine Covington, and we find no plain error in the wording of the sexual abuse counts of the indictment.

Copeland's argument that the jury's verdicts are not supported by sufficient evidence

In a related argument, Copeland asserts that the nine counts of sexual abuse of a minor are worded with so little specificity that, even if the jury believed that Copeland engaged in sexual penetration with J.S. on one or more occasions, the jury could not possibly have determined that any particular count was proved beyond a reasonable doubt. Again, because Copeland did not raise this issue in the superior court, he must show plain error. We find none. '

Count 4, which alleged an act of sexual abuse during December 1996, was supported by testimony that J.S. had sexual relations with Copeland "close to Christmas" when her roommates were out of town, and she and Copeland were able to borrow a bedroom.

Count 5, which alleged an act of sexual abuse during January 1997, was supported by testimony that J.S. stayed at the residence of Allen Funderburk for approximately a week in January 1997 and that she had sexual relations with Copeland "more than once" while she was staying with Funder-burk.

Count 6, which alleged an act of sexual abuse during March 1997, was supported by testimony that J.S. had sexual relations with Copeland before and on Easter Sunday of that year (March 30, 1997).

Count 7, which alleged an act of sexual abuse during April 1997, was supported by testimony that, during April, Copeland brought pornographic videos to the apartment where J.S. was staying and that, after watching those videos, J.S. and Copeland engaged in sexual relations.

Count 8, which alleged an act of sexual abuse during May 1997, was supported by testimony that, during May, J.S. and Copeland had several arguments because J.S. wanted to go outside the apartment despite Copeland's concerns that J.S. would be recognized-and that after some of these arguments, J.S. and Copeland would reconcile by having sexual relations.

Count 9, which alleged an act of sexual abuse during June 1997, was supported by testimony that J.S. had sexual relations with an individual referred to as "Billy" on one occasion during June and that, sometime before and after this event, she engaged in sexual relations with Copeland.

Count 10, which alleged an act of sexual abuse during July 1997, was supported by testimony that J.S. and Copeland took a trip to Anchorage in July and that they engaged in sexual relations before and after this trip.

Count 11, which alleged an act of sexual abuse during August 1997, was supported by testimony that Copeland and J.S. drove to the State Fair and engaged in sexual relations after that trip. |

Regarding these counts in which more than one act of 'sexual penetration might conceivably have been proved within the relevant time frame, Copeland's jurors were instructed that it was necessary for all twelve jurors to find that Copeland committed at least one act of sexual penetration with J.S. during the time period in question, and that it was further necessary for all twelve jurors to agree on the same act of sexual penetration.

Given the testimony and the jury instructions, we conclude that Copeland was accorded his right to a unanimous verdict on each count. There was no error, much less plain error.

Copeland's claim that the trial judge improperly prevented him from introducing evidence that J.S. had falsely accused Copeland's son of engaging in sexual intercourse with her

At Copeland's first trial, J.S. testified that she engaged in sexual relations with both Copeland and his son Joe during a trip from Fairbanks to Anchorage. Later in the trial, Joe testified that he had not had sex with J.S. Copeland was ultimately acquitted of the charge relating to this incident-the one verdict that emerged from that first trial

At Copeland's second trial, Copeland's attorney wanted to have Joe testify that J.S. had falsely accused him of having sexual relations with her. Judge Murphy found that this testimony was barred both by Alaska's rape shield law, AS 12.45.045, and by Alaska Evidence Rule 608, which allows attacks on a witness's character for truthfulness but limits these attacks to reputation or opinion evidence, prohibiting testimony relating to specific instances of- untruthfulness.

At the time of Copeland's trial, the governing law on this issue was found in Covington v. State, 708 P.2d 486 (Alaska App.1985). In Covington, we held that evidence of a vie-tim's false accusations of sexual misconduct would be admissible only if the proponent of the evidence first met a threshold burden of establishing the falsity of the past accusations-"as, for example, where the charges somehow had been disproved or where the witness had conceded their falsity". Id. at 442,

Since that time, we issued our decision in Morgan v. State, 54 P.3d 382 (Alaska App.2002), where we clarified the Covington rule. Morgan holds that, before evidence of a prior false accusation of sexual misconduct can be admitted, the proponent of this evidence must convince the trial judge by a preponderance of the evidence that the prior accusation was both actually and knowingly false. Id. at 889.

Here, based on their testimony at Copeland's first trial, J.S. would assumedly have testified (if she was asked) that Joe Copeland had engaged in sexual relations with her, and Joe would have denied this. But this sort of "he said/she said" testimonial conflict does not satisfy the Morgan requirement that the prior accusation be proved false. Under Morgam, the proponent of the false accusation evidence must present more than simply the accused person's assertion of innocence-for as Judge Coats pointed out in his concurring opinion in Morgan, "Iwle would expect someone who is accused of sexual assault to deny that the sexual assault occurred".

As Judge Coats further noted in Morgan, "(elven if the prior sexual assault went to trial and the defendant was acquitted, all this proves is that the jury had a reasonable doubt that the sexual assault occurred." In Copeland's case, there was not even a jury verdict on this issue-because Joe Copeland was never charged with sexually abusing J.S. It is true that the jury acquitted Mark Copeland of having sex with J.S. during the trip from Fairbanks to Anchorage, but the jury could have returned this verdict even if they were convinced that J.S. had indeed engaged in sexual relations with Joe Copeland during that same trip. That is, the assertion that Joe had engaged in sex with J.S. was collateral to the question the jury was asked to resolve.

In sum, Copeland's offer of proof on this issue-his assertion that Joe Copeland would testify that J.S. accused him of having sex with her during the trip from Fairbanks to Anchorage, and that this accusation was false-was insufficient to trigger the need for a hearing under Morgan.

In his reply brief, Copeland asserts that Joe's denial of sexual relations was supported by the testimony of Joe's younger sister. According to Copeland, the younger sister likewise testified that Joe never engaged in sex with J.S. But Copeland's attorney did not mention the sister's testimony when he asked Judge Murphy to allow him to introduce Joe Copeland's testimony. Moreover, Copeland's characterization of the sister's testimony is not accurate. The sister testified that she never observed her brother having sex with J.S. in the vehicle, but she did not deny that it had happened. (The sister testified that she was asleep for several hours.)

For these reasons, we uphold Judge Murphy's decision to preclude Copeland from introducing the proposed testimony of his son Joe.

Copeland's claim that the trial judge im-property allowed a witness to give testimony suggesting that Copeland was involved in the sale of illegal drugs

Copeland points out that, at his first trial, one of the witnesses gave testimony suggesting that Copeland was involved in the drug trade. But Copeland's first trial ended in a hung jury on all counts but one, and Copeland was acquitted of that one count. Copeland does not contend that this challenged testimony was repeated at his second trial. Therefore, Copeland's claim of error is moot.

Copeland's claim that the prosecutor improperly called a witness to the stand when the prosecutor knew that the witness would claim the Fifth Amendment rather than answer the questions

At Copeland's second trial, the prosecutor called Eddie Gray to the stand. The prosecutor was interested in Gray because, in March 1997, Gray rented an apartment in Fairbanks on behalf of "Ray Enoch"-an alias that Copeland used. Posing as "Ray Enoch", Copeland paid the rent on this apartment, and he installed J.S. there. (J.S. likewise used an assumed name while she lived there.)

During Gray's direct examination, the prosecutor asked him whether Copeland had access to the apartment. The following colloquy occurred:

Prosecutor: Do you know Mark Copeland?
Gray: Yes.
Prosecutor: Did you give [a key to the apartment] to Mark Copeland?
Gray: I don't recall who we all gave the keys to.
Prosecutor: Okay. How many people do you think you gave keys to?
Gray: Several.
Prosecutor: Okay. Why were you giving so many keys around?
Gray: That's personal.
Prosecutor: Please answer my question. Why were you passing so many keys out?
Gray: TI stand on the Fifth on that one.
Prosecutor: I'm sorry? .
Gray: TU stand on the Fifth on that one.

At this point, Judge Murphy dismissed the jury; he also appointed an attorney to advise Gray.

-It is improper for an attorney to present a witness to the jury if the attorney knows that this witness will assert a valid privilege to refuse to answer questions. In the present case, the prosecutor asserted that she had not known that Gray would claim the privilege against self-inerimination. Copeland's attorney told Judge Murphy that he wished to reserve the right to request a mistrial if a subsequent investigation revealed that the prosecutor had not been acting in good faith.

During the discussion of this point, the defense attorney contended that certain pretrial police interviews contained sufficient information to alert the prosecutor that Gray was likely to invoke the Fifth Amendment. The defense attorney also asserted that, during Copeland's first trial, there was testimony suggesting that Gray was involved in a "drug cartel". However, following this discussion, Copeland's attorney never again asked Judge Murphy to address this issue, and the defense attorney never requested a mistrial.

The defense attorney did, however, ask Judge Murphy to give a curative instruction to the jury. In response, the judge gave the following instruction:

[Y¥lou are to totally disregard, for any purpose of this trial, the response that the witness gave [when] he said that he invoked the Fifth.... [You may not consider that statement by that witness, whatever he meant by it, to indicate in any way any criminality or accusation against either Mr. Copeland or Mr. Gabayan [Copeland's co-defendant]. That was merely this witness's statement. And, again, you are not to consider it for any purpose of this case, and it has nothing whatsoever to do with any accusations in this case or charges against either of the defendants.... °
[Pleople [watch] movies on TV, and they [hear] people say, "I invoke the Fifth", and often times they don't even know what they're saying. And, quite frankly, people do that when they haven't done anything wrong themselves. It's just a phrase they pick up. So, please, totally disregard it in its entirety.

Copeland never objected to the wording of this instruction.

Later, Judge Murphy reviewed tape recordings of the police interviews of Gray. Following this review, the judge informed the parties that Gray in fact did have a reasonable concern that he would incriminate himself if he answered the prosecutor's question. Judge Murphy also concluded that, even though the prosecutor may have hoped that Gray would not invoke the Fifth Amendment, the prosecutor should have instructed Gray that, if Fifth Amendment concerns arose during the examination, Gray should not expressly invoke the Fifth Amendment in front of the jury.

Nevertheless, Judge Murphy held that there had been no prosecutorial misconduct of sufficient severity to merit a mistrial-that any prejudice to the defendants had been corrected by the curative instruction already given to the jury. As noted above, Copeland never actually asked for a mistrial, nor did he seek an additional curative instruction or any other relief.

On appeal, Copeland contends that Judge Murphy should not have believed the prosecutor's protestation of good faith. He argues that if Judge Murphy could listen to the tapes of the pre-trial interviews and discern that there was a Fifth Amendment problem, the prosecutor must have been able to see this problem too.

This claim is not preserved for appeal. As already explained, as soon as this issue surfaced, Copeland's attorney told Judge Murphy that he wished to reserve the right to request a mistrial if a subsequent investigation revealed that the prosecutor had not been acting in good faith. But the defense attorney never returned to this issue. He never actually argued that the prosecutor had acted in bad faith, nor did he object or ask for reconsideration when Judge Murphy found that the prosecutor had acted in good faith.

In the alternative, Copeland contends that "given the highly prejudicial nature of [Gray's] invocation of [the] Fifth Amendment privilege", a curative instruction was insufficient to solve the problem and "the proper [course was] to declare an immediate mistrial".

Again, this claim is not preserved for appeal. Copeland's attorney never asked for a mistrial. Instead, he asked for a curative instruction. Judge Murphy gave the requested instruction, and Copeland's attorney never objected to the wording of this instruction. Copeland can not shift course now.

That being said, Copeland can still raise this issue as a claim of plain error. But to prevail on a claim of plain error, Copeland would have to show that no competent judge could have believed that the problem could be solved by steps short of a mistrial. Copeland has failed to adequately brief this claim. His sole argument on the issue of prejudice consists of the single conclusory sentence that we quoted two paragraphs above.

Moreover, an appellate court will normally defer to a trial judge's decision concerning whether a particular reference to improper information can be cured with a clarifying or cautionary instruction or whether, instead, a mistrial is needed. We defer to the trial judge because the judge "has the opportunity to hear the tainted evidence as it is presented and to observe the impact it has on the jury.

Finally, we have repeatedly warned trial judges to be extremely cautious about granting a mistrial when the defendant has not sought one-because, under the double jeopardy clause, if a judge declares a mistrial sua sponte when there is no manifest necessity for it, the charges against the defendant must be dismissed.

In light of this governing law, even if Copeland had adequately briefed the issue of prejudice, we would find no plain error. Copeland never disputed that he knew Gray, or that Gray had given him a key to the apartment rented on behalf of "Ray Enoch", or that he (Copeland) was the one paying the rent on the apartment. Thus, the question that Gray refused to answer did not concern a contested subject. Not only did this reduce the danger of prejudice from Gray's assertion of the Fifth Amendment, but it also made it more likely that the jury would follow Judge Murphy's cautionary instruction and disregard Gray's assertion of privilege.

In sum, there was no manifest necessity for a mistrial.

Copeland's claim that his sentence is excessive

Copeland was convicted of contributing to the delinquency of a minor (a class A misdemeanor) and nine counts of second-degree sexual abuse of a minor (a class B felony). Because Copeland was a first felony offender convicted of class B felonies, his sentencing was governed by the benchmark ranges set forth in State v. Jackson, 776 P.2d 320, 326-27 (Alaska App.1989).

Under Jackson, a typical offender who has committed a typical to moderately aggravated offense should receive an unsuspended term of 1 year or more." The upper limit in this category is 4 years' imprisonment, reflecting our decision in Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981)" For an offense that is exceptionally aggravated-i.e., one that involves the existence of significant statutorily specified aggravating factors or other extraordinarily aggravated cireum-stances-a judge may impose up to 6 years to serve.

For the nine counts of sexual abuse, Judge Murphy sentenced Copeland to a composite sentence of 10 years' imprisonment with 83 years suspended-t.e., 7 years to serve. For the additional offense of contributing to the delinquency of a minor (%.e., aiding, inducing, or encouraging J.S. to leave the custody of her parents without their knowledge or consent), Judge Murphy sentenced Copeland to serve a consecutive term of 1 year's imprisonment. Thus, Copeland's composite sentence is 11 years with 3 years suspended-i.e., 8 years to serve.

Obviously, this sentence exceeds the Jackson benchmark range of sentences for exceptionally aggravated offenses. However, as we have pointed out in the past, a benchmark range is not a hard-and-fast limit on a judge's sentencing authority. Rather, a benchmark range can be exceeded if there is a sound reason to differentiate the defendant's case from the typical cases encompassed in that benchmark range.

For example, in Davis v. State, 798 P.2d 1064 (Alaska App.1990), we approved a sentence of 10 years to serve for a first felony offender convicted of multiple counts of see-ond-degree sexual abuse of a minor. We noted that Davis's offenses would qualify as "exceptionally aggravated" under the Jackson guidelines for "several independent [reasons]. Because "[alny of these factors taken alone" would have placed Davis's case within Jackson's "exceptionally aggravated" category, we concluded that Davis could properly receive a sentence greater than the 4- to 6-year range set forth in Jackson for exceptionally aggravated cases.

When Judge Murphy sentenced Copeland, he expressly acknowledged the Austin decision and the Jackson benchmarks. The judge concluded that he should exceed these benchmarks because Copeland was a "worst offender".

Judge Murphy concluded that Copeland was a worst offender based on (1) the number of Copeland's acts of intercourse with J.S.; (2) the length of time during which Copeland carried on his illicit relationship with the teenager; (8) the emotional harm that Copeland inflicted on both J.S. and her family; (4) Copeland's deviousness in "drivling] a wedge" between J.S. and her family so that he could obtain sexual gratification; culminating in (5) Copeland's scheme to hide J.S. from her family and, at the same time, control her. In addition, Judge Murphy noted that Copeland continued to insist that he never engaged in sex with J.S., but only tried to help the girl. Accordingly, based on the totality of the cireumstances, Judge Murphy concluded that Copeland's prospects for rehabilitation were "guarded" or "poor".

We note that even though Judge Murphy found that Copeland was a worst offender, the judge did not impose a composite sentence equal to the 10-year maximum term that Copeland might have received for see-ond-degree sexual abuse of a minor. Rather, Judge Murphy sentenced Copeland to a composite term of 8 years to serve, encompassing the nine counts of second-degree sexual abuse and the count of contributing to the delinquency of a minor.

We acknowledge that Copeland's sentence is among the most severe reported sentences for defendants convicted of second-degree sexual abuse of a minor. But within this category, Copeland's offense is unusually serious. Judge Murphy explained why he believed that Copeland's sentence should exceed the normal benchmark ranges, and the record supports the judge's explanation. For this reason, we can not say that Copeland's composite 8 years to serve is clearly mistaken. Accordingly, we affirm the sentence.

Conclusion

The judgement of the superior court is AFFIRMED.

      . AS 11.41.300(a)(1)(F) and AS 11.41.436(a)(1), respectively.

      . AS 11.51.130(a).

      . Tyler v. State, 47 P.3d 1095, 1100 (Alaska App.2001) (emphasis in the original).

      . Id., citing Keen v. Ruddy, 784 P.2d 653, 658 (Alaska 1989).

      . Sam, 842 P.2d at 599.

      . Morgan, 54 P.3d at 340 (Coats, C.J., concurring).

      . Id.

      . See Williams v. State, 600 P.2d 1092, 1093 (Alaska 1979).

      . See Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990) (when a claim of error is supported by no more than "a cursory statement in the argument portion .of the litigant's brief, the point will not be considered on appeal").

      . Allen v. State, 51 P.3d 949, 955 (Alaska App.2002).

      . Brown v. State, 693 P.2d 324, 327 (Alaska App.1984).

      . Cook v. State, 36 P.3d 710, 729 (Alaska App.2001).

      . AS 11.51.130(b).

      . AS 11.41.436(b).

      . Jackson, 776 P.2d at 326.

      . Jackson, 776 P.2d at 326.

      . Id.

      . See Brown v. State, 973 P.2d 1158, 1162 (Alaska App.1999); Williams v. State, 809 P.2d 931, 934 (Alaska App.1991).

      . Davis, 793 P.2d at 1066.

      . Id.

      . See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to uphold a sentencing decision unless the sentence is clearly mistaken).


source: Caselaw Access Project

license: Public Domain

text:
    John Kevin PHILLIPS, Appellant, v. STATE of Alaska, Appellee.
    No. A-7428.
    Court of Appeals of Alaska.
    May 30, 2003.

      David D. Reineke, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    WH. Hawley, Jr., and Kenneth J. Diemer, Assistant Attorneys General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

John Kevin Phillips was paroled from prison on January 9, 1997. On the afternoon of the next day, he committed armed robbery at a store in downtown Anchorage. During this robbery, Phillips wounded one of the victims with a knife. Phillips then hired a cab to drive him to Palmer.

When Phillips got to Palmer, he stole the cab and started driving east on the Glenn Highway. A state trooper, Bruce Heck, spotted the cab and turned on his overhead lights, attempting to initiate a traffic stop. Phillips would not stop, so Heck followed him down the highway. The road surface was quite slick and, while Phillips was fleeing from the trooper, he drove the cab off the highway and into a ditch. Phillips then ran into the woods.

Trooper Heck followed Phillips into the woods and eventually caught him-for when Phillips was finally arrested, he had handcuffs fastened to his left wrist. However, during or immediately after Heek's struggle with Phillips, Heck died-either from being smothered or after suffering a heart arrhyth-mig. '

Based on this series of events, Phillips was convicted of first-degree robbery, second-degree assault, first-degree vehicle theft, second-degree escape, and second-degree murder, He now appeals these convictions.

Phillips argues that his trial was unfair because the robbery and assault charges (the charges arising from the events in Anchorage) were joined with the vehicle theft, escape, and murder charges (the charges arising from the events in Palmer and further east on the Glenn Highway, near Glennallen). Phillips also argues that the jury was misin-structed on the law of causation, so they could not properly decide whether Phillips was criminally responsible for Trooper Heck's death. In addition, Phillips asserts that his trial was unfair because a large number of uniformed troopers and police officers attended the trial-implicitly informing the jury that the law enforcement community wanted to see the defendant convicted. Finally, Phillips argues that his sentence-142 years in prison-is excessive.

For the reasons explained here, we affirm Phillips's convictions but we vacate his sentence and direct the superior court to re-sentence Phillips.

Underlying facts

Phillips was released on parole from the Spring Creek Correctional Center on January 9, 1997. He got a ride to Anchorage; the driver dropped him off at the Fifth Avenue Mall so that he could buy some tennis shoes.

While he was buying the shoes, Phillips asked the store clerk where he could purchase a wig. The clerk was unable to help Phillips, so Phillips left the mall and went across the street to a restaurant, Club Paris, where he asked a waitress if she knew where he could purchase a wig. The waitress directed Phillips to "Fashion Wigs", a store in the Northway Mall. Later that afternoon, Phillips purchased a black long-haired unisex wig at Fashion Wigs. Around 4:00 p.m., Phillips checked into the Comfort Inn using the alias "Johnny Raven".

The next afternoon (January 10, 1997), a little after 4:00, Phillips donned the black wig and entered the Army-Navy Store on Fourth Avenue, where he purchased a 12-inch "K-Bar" knife (a combat-style knife).

Shortly thereafter, Phillips entered Fifth Avenue Furs. This fur shop was owned by Roberto Cuautle Both Cuautle and his daughter, Liliana Hern@ndez, were working in the store that afternoon. Herngndez was seven-months pregnant, and her two young daughters (a three-year-old and a five-year-old) were also in the shop.

Phillips chose this store because he believed that Cuautle's son, Manuel, owed him money. Both Phillips and Manuel Cuautle had been imprisoned at Spring Creek. Manuel agreed to sell Phillips an ounce of marijuana for $700. Phillips sent a check for the purchase price to Manuel (in care of the fur shop). Phillips apparently received some of the marijuana, but before Manuel could deliver the rest of the ounce, Phillips was placed in segregation. By the time Phillips was returned to the general prison population, Manuel had been released-and, consequently, Phillips never received the remainder of the drug (or a refund of his money). Thus, Phillips was intent on obtaining restitution when he entered Fifth Avenue Furs on January 10th.

Posing as a customer, Phillips asked Liliana Herngndez to show him some jackets. Without warning, Phillips pulled the K-Bar knife from under his jacket and held it to the middle of abdomen. Phillips then told Roberto Cuautle not to move or he would kill Cuautle's daughter. Cuautle responded, "What do you want? We have no money." Cuautle opened the cash register, apparently to prove that there was no money in the store.

Phillips then forced Herngndez and Cuau-tle to the back of the store, where he made them lie down on their stomachs. He placed a knee in each of their backs, and then he began bashing Roberto Cuautle's head into the ground, repeatedly asking, "Where is the money?" Neither Cuautle nor was aware of the prior drug transaction, so they did not understand what money Phillips was talking about.

When there was no money forthcoming, Phillips began to bash Cuautle's head into the ground with greater force. Herngndez could see blood streaming down her father's face. Finally, Cuautle told Phillips that there was some money in his back pocket.

Phillips took $300 from Cuautle's wallet, but he told Cuautle that this was not enough. He then said to Cuautle, "Man, I can't believe you're going to let her [i.e., Herngndez] die for such a little amount; I can't believe you're going to let her die. You don't believe me, man? I'm going to slice her up like a fucking pig." Phillips then grabbed Hernén-dez's hair and pulled her head back, exposing her neck. He told Cuautle, "Watch You don't believe me? I'm going to kill her. Watch." Phillips then raised his knife to Herngnder's throat. When Herngndez saw what Phillips was doing, she instinctively put her left hand up to shield her throat. The knife sliced through Herngndez's palm, causing a deep gash that began to bleed profusely. 5. ~ «

When Herngndez realized that she was wounded, she yelled at Phillips to get her a towel, and Phillips complied. At about that time, there was a sound as if someone had entered the store. Phillips turned to look at the door, and then he decided to flee. In his rush to leave, Phillips abandoned the sheath for the K-Bar knife, as well as the blue plastic retail bag that the Army-Navy Store had given him when he purchased the knife. Phillips's fingerprints were later recovered from the plastic bag.

After Phillips ran from Fifth Avenue Furs, Herngndez hit the silent alarm and called "911". The police responded to the robbery around 5:08 p.m.

After fleeing from Fifth Avenue Furs, Phillips went to Humpy's Great Alaska Alehouse, where he purchased a cup of soup and a shot of tequila. He then proceeded to the Hub Bar, where he was picked up by a cab around 6:00 p.m.

Initially, Phillips told the cab driver to take him to the Comfort Inn, so that he could recover his belongings. He then told the cab driver to take him to a fictitious address in Palmer. They arrived in Palmer around 7:00 p.m. When the cab driver got out of the cab to determine whether they had found the "right" address, Phillips stole the cab and headed east on the Glenn Highway. Around 8:30 pm. he stopped at a lodge, where he purchased a cup of coffee. He also stopped at the scene of a single-vehicle accident to see if the stranded motorist needed help.

Around 9:30 pm., Alaska State Trooper Bruce Heck spotted the stolen cab near Mile 156 of the Glenn Highway-that is, about thirty miles west of (Glennallen. Trooper Heck informed his dispatcher (his wife, Laurie Heck) that he had spotted the cab and that he intended to follow it toward Glennal-len. At 9:34 p.m. Trooper Heck notified his dispatcher that the cab was not yielding to his flashing lights. At 9:85 p.m., Trooper Heck informed his dispatcher that the cab had gone off of the highway and into the ditch.

Another motorist, Roy Yates, arrived at the scene shortly after the stolen cab went into the ditch. He saw the driver "moving swiftly" away from the overturned cab and into the woods. He then watched Trooper Heck head into the woods after the fleeing driver.

About fifteen minutes later, & second trooper, Don Pierce, arrived on the scene. Yates told Pierce that the first trooper (Heck) had pursued the cab driver into the woods and had disappeared from sight. Trooper Pierce immediately began to follow the footprints through the snow.

At the end of the freshly-made trail, Pierce discovered Heck lying on his back. Heck's face was covered with snow, and there was a great deal of blood in the immediate area. Heek had no pulse. The area around Heek's body was trampled down, as if there had been a struggle.

Trooper Pierce then spotted Phillips making his way back toward the Glenn Highway. Pierce raced back toward the highway, caught up with Phillips, and ordered him to stop and raise his hands. Phillips complied. When Phillips raised his hands into the air, Pierce could see that his left wrist was handcuffed. Phillips had blood on his face and hands.

i The joinder of the Amchorage and the Palmer/Glennallen charges

Phillips was indicted by two different grand juries, one sitting in Palmer and the other sitting in Anchorage. On January 23, 1997, Phillips was indicted by a Palmer grand jury for murder, escape, and vehicle theft; all of these charges arose from Phillips's conduct in Palmer and on the Glenn Highway near Glennallen.

Three weeks later, Phillips was indicted by an Anchorage grand jury for robbery and assault stemming from his conduct at Fifth Avenue Furs. After the grand jury indicted Phillips on these charges, the prosecutor asked the jury foreperson to sign another, expanded indictment that added the Palmer and Glennallen counts (murder, escape, and vehicle theft). The prosecutor explained that he was asking the foreperson to do this "so that we will have one trial". As requested, the foreperson signed the expanded indictment.

Before trial, Phillips asked the superior court to sever the Anchorage counts from the Palmer/Gliennallen counts. He challenged the method by which these charges were joined, and he also argued that, in any case, joinder was not proper under Alaska Criminal Rule 8 or 18. Finally, Phillips argued that even if the charges were properly joined, they should be separated pursuant to Alaska Criminal Rule 14 because the joinder was unfairly prejudicial.

(a) Could the Anchorage grand jury join these counts by simply adopting the charges contained in the Palmer indictment?

Phillips contends that it was improper for the Anchorage grand jury to return an indictment listing both the Anchorage charges and the Palmer/Glennallen charges when the Anchorage grand jury did not hear any evidence concerning the Palmer/Glennal-len charges. In other words, Phillips questions whether the Anchorage foreperson had the authority to simply sign an expanded indictment that included the Palmer/Glennal-len charges based on the fact that Phillips had already been indicted on those charges by a separate grand jury.

We need not resolve this issue because Superior Court Judge Larry D. Card ultimately ruled that these two sets of charges should be joined under Alaska Criminal Rule 13. This rule declares that when a defendant faces trial on two or more indictments, the superior court may join all of the charges in a single trial "if the offenses ... could have been joined in a single indictment" under the rule set forth in Criminal Rule 8(a).

When Judge Card ruled that joinder of the charges was proper under Rule 18, he mooted the question of grand jury procedure. Instead, the question is now whether Judge Card abused his discretion when he ordered joinder under Rule 18. And since joinder is proper under Rule 183 only if the charges could have been joined in a single indictment under Rule 8(a), the resolution of this question really turns on whether all of the charges against Phillips are related to each other in one or more of the ways listed in Rule 8(a).

(b) Was joinder proper under Criminal Rule 8(a)?

When Judge Card denied Phillips's motion for severance of the Anchorage charges from the Palmer/Clennallen charges, he stated that he felt that joinder was proper "because the sequence of events ... indi-catel[s] a relationship" between the offenses. But Phillips contends that joinder was improper because, even though some relationship may exist between the Anchorage charges and the Palmer/Glennallen charges, the charges are not related in any of the ways specified in Criminal Rule 8(a).

Criminal Rule 8(a) declares that different offenses can be joined in a single indictment if:

(1) [the offenses] are of the same or similar character and it can be determined before trial that it is likely that evidence of one charged offense would be admissible to prove another charged offense, [or]
(2) [the offenses] are based on the same act or transaction, or
(8) [the offenses] are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

We conclude that Phillips's offenses were properly joined under subparagraph (8). The superior court could properly conclude that the Anchorage robbery and assault, the Palmer vehicle theft, and the Glennallen escape and murder constituted "acts or transactions [that were] connected together".

Viewing the evidence in the light most favorable to the superior court's ruling, Phillips committed armed robbery and assault shortly after being released from prison. He then enticed a cab driver to drive him from Anchorage to Palmer. Phillips apparently had no intention of paying for this transportation; he gave the driver a fictitious address and then he stole the cab. Phillips drove the stolen vehicle toward Glennallen, putting as much distance as possible between him and Anchorage. Just before Phillips reached (Glennallen, he was apprehended by Trooper Heck-leading to the further crimes of escape and murder.

Several Alaska cases have upheld joinder of charges when the defendant committed a crime and then assaulted the police officer(s) who attempted to confront or apprehend the defendant for this crime. For example, in Newcomb v. State, 800 P.2d 935 (Alaska App.1990), the defendant escaped from prison and then violently assaulted the police officers who attempted to apprehend him. We concluded that there was an "obvious nexus" between Neweomb's escape and the efforts to apprehend him, and we therefore upheld the joinder of these charges under Criminal Rule 8(a)(8).

Similarly, in Maynard v. State, 652 P.2d 489 (Alaska App.1982), the defendant assaulted a young girl in the evening, assaulted one of the police officers who came to arrest him the next morning, and then escaped. Again, this Court held that joinder of the three charges was proper because "the offenses [grew] out of a sequence of interrelated transactions", each one serving "to explain and render intelligible the others". We noted that the defendant's assault on the girl "explain[ed] the police officers' presence on his porch" the next morning, and provided "some insight into [the defendant's] state of mind" when he swung a machete at one of the officers and then ran away.

Phillips correctly notes that his case is arguably distinguishable from both Newcomb and Maynard because, in the present case, Trooper Heck was attempting to apprehend Phillips for vehicle theft, not for the Anchorage robbery and assault. But this distinction does not defeat joinder. Although Heck did not know that Phillips had committed robbery and assault in Anchorage, Phillips knew it. Phillips's commission of these Anchorage offenses was therefore relevant to help explain Phillips's decision to assault Heck and to escape from custody.

See also Collins v. State, 778 P.2d 1171 (Alaska App.1989), a case in which the defendant shot and killed a rival drug dealer at the request of some of his cohorts; then, the next day, he shot and killed four members of his own organization (and seriously wounded another) after he overheard conversations that led him to believe that he was to be the next vietim. This Court found that Collins's offenses were "clearly connected together" because

[even though] the offenses arose out of two separate incidents, the incidents occurred only a day apart and were intimately related.... Under [the State's theory of the casel, the August 6 shootings resulted from Collins' belief that he was going to be killed because of his role in the August 5 crime. Consequently, knowledge of the August 5 shooting was indispensable to an understanding of the events of August 6.

Collins, TIS P.2d at 1178.

For similar reasons, we conclude that the counts of the indictment charging Phillips with robbery and assault in Anchorage were properly joined under Criminal Rule 8(a2)(8) with the counts of the indictment charging him with vehicle theft, escape, and murder.

(c) Was Phillips unduly prejudiced by the joinder?

Our conclusion that the charges against Phillips were properly joined does not end our inquiry, for Phillips also argues . that even if joinder was proper, he was entitled to severance under Criminal Rule 14, because joinder of the charges unduly prejudiced the fairness of his trial.

In the present case, Phillips argues that joinder of the Anchorage charges unfairly prejudiced him with respect to the murder charge because the robbery and assault evidence was cumulative with respect to his motive, and because introduction of evidence concerning the robbery "undoubtably caused the jury to focus on [Phillips's] prior act[s], and convict him because of his character". These arguments are not persuasive.

Phillips's theft of the taxi cab was perhaps sufficient, in itself, to explain Phillips's decision not to pull over when Trooper Heck initiated the traffie stop. But what followed-Phillips's flight into the woods in subzero temperatures, and his assault on Trooper Heck to escape custody-are much better explained by the fact that Phillips had just committed armed robbery and assault. These are serious felonies, and Phillips could reasonably anticipate that he would receive lengthy terms of imprisonment for these offenses if he was captured. Because of this, it was not improper for the jury to "focus" on the Anchorage crimes to the extent that these crimes provided a potential motive for Phillips's conduct on the Glenn Highway.

For these reasons, we uphold the superior court's decision to allow Phillips to be jointly tried for the Anchorage offenses and the Palmer/Glennallen offenses.

Potential prejudice arising from the presence of a large number of uniformed officers in the spectator section at the opening of the trial

Because Phillips was charged with the murder of a state trooper, his case generated considerable interest within the law enforeement community. On appeal, Phillips claims that his right to a fair trial was prejudiced because a number of law enforcement officers attended the early stages of his trial, wearing their uniforms.

(a) Underlying facts

On the first day of Phillips's trial (Tuesday, January 20, 1998), just before the jury was brought into the courtroom to hear opening statements, Phillips's attorney voiced his concern over the "large contingent of uniformed officers" present in the spectator section of the courtroom. The defense attorney asserted that the presence of so many uniformed officers in an unofficial or personal capacity seemed "inappropriate", and he asked the trial judge to intervene because the presence of the officers was "psychologically prejudicial to [Phillips's] interests".

Initially, Judge Card minimized the defense attorney's concern. The judge declared that the court proceedings were open to everyone-and that law enforcement officers, like all other citizens, had a right to attend the trial. The judge further stated that he did not know whether he had the authority to bar the officers from wearing their uniforms while they attended court. Phillips's attorney responded that the court had a duty to make sure that the proceedings were conducted in a fair and impartial manner.

Judge Card asked the prosecutor if the officers had been ordered to attend the trial. The prosecutor answered that he thought that the officers were there voluntarily "to support Trooper Heck", and that they had not been ordered to attend. A subsequent inquiry of the six officers in attendance revealed that five of them were on duty, while the sixth officer was attending the trial on her day off. The prosecutor then explained that, even though the five officers were on duty, their reasons for attending the trial were personal:

Prosecutor: They're here because they're interested in the outcome of the trial. They're interested in how the trial progresses. They're interested in supporting their fellow fallen officer. They're here because they're curious. They're here because they want to support the State. And I think those [are] all legitimate and constitutionally valid reasons.

During this discussion, Judge Card referred to his experience as a military lawyer. He told the defense attorney that, in the military, spectators often came to court in uniform. The judge also noted that jurors are normally instructed to confine their deliberations to the evidence presented at the trial, not to consider extraneous facts for any purpose, and not to base their verdict on prejudice or sympathy.

Based on all of this, Judge Card declined to prohibit law enforcement officers from attending Phillips's trial in uniform, so long as they were attending in their personal capacity as citizens of the State of Alaska. (Assumedly, officers attending the trial in their official capacity would likewise be allowed to wear their uniform.) Judge Card stated that he would not exclude the officers-indeed, would not exclude anyone-from the trial, because "the purpose of being here is to have an open trial".

This is how matters stood until the following Monday, January 26th, when Judge Card called both parties into his chambers. A court employee, Debra M. Coleman, had informed Judge Card that, during the weekend, she had overheard one of the jurors talking about the case with a friend while they were in a crowded shower at the gym.

Judge Card put Ms. Coleman under oath and had her describe the conversation she had overheard. Ms. Coleman testified that she overheard the juror tell another woman that she was a juror in the Phillips case and that "there [were] a lot of state patrol officers in the courtroom...."

Based on Coleman's testimony, Judge Card suggested that the juror be called in for questioning. The judge was concerned that the juror might have been "expressing nervousness about officers being in the courtroom", and he wanted to make sure that this was not the case.

In response, the prosecutor suggested that it would be counter-productive to single out this juror. The prosecutor told the court that he had made some telephone phone calls and had learned that "many of the officers that we [saw] were [new] reeruits ... who [had] been encouraged by their supervisors ... to come to court and watch, because it's not too often that a quote 'cop killer' ... case goes to trial." The prosecutor then explained that he "[did] not want the jury to get the ... impression that somehow [the State was] packing the courtroom ... with [the] intent to influence the outcome of the case", so he had "asked the right people ... to sort of discontinue" this practice. The prosecutor predicted that the number of uniformed officers attending Phillips's trial would decrease, and he suggested that, by the end of trial, the jurors would look back and "associate the number of officers with the beginning of the trial" and would probably attribute the officers' presence to "curiosity, and coming to court and watching opening statements, and such".

Phillips's attorney agreed with the prosecutor that "singling out [this juror] or [anybody else might be inappropriate". He therefore did not ask Judge Card to conduct a voir dire examination of the juror. Rather, the defense attorney asked Judge Card to issue a "pointed admonition" to the jurors as a group, directing them to refrain from talking to anyone about the case.

The defense attorney also reiterated that he believed the court had the power and the duty to prevent law enforcement spectators from wearing their uniforms. He indicated that he would soon be filing a motion asking the court to bar law enforcement officers from attending the trial in their uniforms. Judge Card stated that he wished to review this motion and the accompanying memorandum of supporting authority before he took any action.

The defense attorney filed his motion that same afternoon. Judge Card heard argument on this motion on the morning of Monday, February 2nd (4.e., the beginning of the third week of trial), The State argued that the defense motion was essentially moot because the number of officers in attendance had dropped dramatically during the second week of trial. But Phillips's attorney disputed that the issue was moot. He asserted that the prejudice to Phillips's case had already occurred-that "people were really struck by the wall of blue in the front row when they walked into this trial" when it opened. Accordingly, the defense attorney asked Judge Card to consider the prejudice that had already occurred during the first week of Phillips's trial, as well as the foreseen prejudicial effect of having a "solid phalanx of blue here in court [during] closing arguments".

Again, Judge Card minimized the defense attorney's concerns. The judge conceded that there were reported cases in which trial judges had been criticized for allowing spectators to openly wear buttons proclaiming their membership in Mothers Against Drunk Driving or Women Against Rape. But the wearing of a police uniform, Judge Card declared, did not "convey a message ... other than justice-which is what we're here for". Thus, Judge Card concluded, the presence of uniformed law enforcement officers in the spectator section did not pose an "unacceptable risk".

Judge Card stated, however, that he did not want to have "a sea of blue, shoulder-to-shoulder in this courtroom, packing it with forty-nine officers, [leaving] no room for civilians". So, rather than issue the complete ban on uniformed officers that Phillips requested, Judge Card stated that he preferred to set a limit on the number of uniformed officers who could sit in the spectator section. The judge suggested a limit of ten to twenty percent of the courtroom's spectator seating.

(The record indicates that the seating capacity in the spectator section was forty-five people. Thus, under the judge's suggested guideline, five to ten uniformed officers would have been allowed to attend the trial.)

Phillips's attorney responded that twenty percent was "too large ... a presence of the police". The defense attorney then moved for a mistrial "based on the prejudice that [he] believe[d had] already occurred in the course of this trial".

Judge Card denied the defense motion for a mistrial, but he appeared to offer a new compromise: he stated that he was "leaning towards" a limit of five uniformed officers. In a written order issued later that day, Judge Card did indeed limit the number of police officers in attendance to five-approximately ten percent of the courtroom's spectator seating capacity.

Phillips's trial continued for another three weeks. The case went to the jury on Friday, February 27th, and the jury returned its verdict on Tuesday, March 3rd. The defense attorney never raised this subject again.

(b) Did the presence of the law enforcement officers prejudice the fairness of Phillips's trial?

On appeal, Phillips argues that law enforcement spectators constituted "an overwhelming and intimidating police presence in the courtroom" and that, accordingly, Judge Card should have granted his motion for a mistrial or at least should have completely barred the presence of uniformed officers in the spectator section.

The United States Supreme Court has observed that "a roomful of uniformed and armed policemen might pose [a threat] to a defendant's chances of receiving a fair trial" -although, in that case, the Supreme Court was referring to the potential inference that a defendant was an especially dangerous criminal who needed extraordinary guarding. Here, the danger was different: Phillips was on trial for murdering a state trooper, and the appearance of law enforcement officers en masse in the spectator gallery posed a threat that the jurors would feel implicit pressure to return a verdict favorable to law enforcement interests or sentiment.

Other courts have acknowledged this potential obstacle to a defendant's receiving a fair trial,. See Balfour v. State, 598 So.2d 731, 756 (Miss.1992), where the court noted the potential "coercive atmosphere" when uniformed police officers sat together in a group during a capital murder trial where the victim was a law enforcement officer.

The potential prejudice associated with the presence of uniformed law enforcement officers during a prosecution for the murder of a police officer is similar to the potential prejudice associated with the presence of other types of spectators at a criminal trial who conspicuously align themselves with the vice-tim's interests. Thus, in Norris v. Risley, 918 F.2d 828, 829-30, 831 (9th Cir.1990), the court reversed the defendant's conviction for rape because several members of a local rape task foree and the National Organization for Women wore "Women Against Rape" buttons during the trial In Woods v. Dugger, 923 F.2d 1454, 1459-60 (11th Cir.1991), the court reversed a defendant's conviction for the first-degree murder of a corrections officer due, in part, to the "prejudice aris[ing] from the presence of the uniformed corrections officers" in the courtroom. And in State v. Franklin, 174 W.Va. 469, 327 S.E.2d 449, 454-55 (1985), the court reversed the defendant's conviction for a homicide arising from drunk driving because, throughout the trial, ten to thirty spectators seated directly in front of the jury wore "Mothers Against Drunk Driving" buttons inscribed with the acronym "MADD".

Thus, there is case law to support the defense attorney's objection to the presence of a large group of uniformed law enforcement officers in the spectator gallery at Phillips's trial. But the question in Phillips's appeal is whether the law enforcement presence was so prejudicial that Judge Card abused his discretion when he limited the police presence to five uniformed officers instead of accepting the defense proposal to bar all uniformed officers from attending the trial or, in lieu of that complete bar, granting the defense request for a mistrial.

Generally, a trial judge's decision to grant or deny a motion for mistrial is reviewed for abuse of discretion , and we conclude that the same standard of review should govern a mistrial motion based on an allegation of prejudice stemming from the presence of spectators affiliated with one party or another. The trial judge is in the best position to determine the potential effect that the presence of spectators might have on the jurors, and to observe whether these spectators engaged in untoward demonstrations of sentiment or allegiance.

Application of an abuse of discretion standard is somewhat difficult in Phillips's case because it appears that, at least initially, the trial judge did not fully appreciate the risk of prejudice-ie., the risk of sympathy or intimidation-posed by the presence of a group of uniformed law enforcement officers in the spectator section of the courtroom. Judge Card's analogy to military trials (where spectators often come to court in uniform) was not particularly apt-since, in a military court, the accused, the accuser, and the jurors (and often the victim) are all members of the military. And a defendant accused of killing or assaulting a law enforcement officer might properly be dismayed by the judge's further statement that a police uniform "convey[s nol message other than justice-which is what we're here for".

Nevertheless, both the prosecutor and Judge Card ultimately responded to the defense attorney's concerns. At the beginning of the second week of trial, the prosecutor announced that he "[did] not want the jury to get the ... impression that somehow [the State was] packing the courtroom ... with [the] intent to influence the outcome of the ease", so he had "asked the right people ... to ... discontinue" the practice of encouraging law enforcement officers to attend the trial,. And at the beginning of the third week of trial, Judge Card issued a ruling that limited the number of uniformed law enforcement spectators to five at any one time.

It is important to note that, when Phillips's attorney asked for the mistrial, he did not assert that these measures had proved, or would prove, ineffective. Rather, the defense attorney argued that irremediable prejudice had already occurred, arising from the officers' presence during the first week of trial, and that no remedy short of a mistrial or at least a complete ban on the presence of uniformed officers would eure this prejudice.

But Phillips's trial lasted six weeks. From the record before us, it appears that the law enforcement presence was conspicuous for only the first week of the trial. Moreover, when the defense attorney had the chance to voir dire a juror (at the beginning of the second week of trial) to see if the presence of law enforcement spectators was in fact influencing the jury, the defense attorney declined the opportunity. Based on this record, we conclude that Judge Card did not abuse his discretion when he rejected Phillips's request for a mistrial or, alternatively, a complete ban on the presence of uniformed officers, and instead opted for other remedial actions to minimize the risk of prejudice while at the same time accommodating the officers' legitimate interest in attending the trial.

Potential prejudice arising from the fact that the prosecutor introduced Trooper Heck's widow to the jury at the beginning of the trial

On the morning of the second day of trial (January 21, 1998), the prosecutor asked Judge Card for permission to introduce Trooper Heek's widow to the jurors. Phillips objected that there was no reason for such an introduction, other than the prosecutor's desire to generate "as much sympathy and emotion as he can". Judge Card overruled this objection, noting that he had already instructed the jurors that sympathy was to play no part in their decision, and that he intended to do so again at the end of the trial

The prosecutor, then proceeded to introduce Laurie Heek, who was seated in the spectator gallery next to some uniformed officers. But instead of simply introducing Ms. Heck, the prosecutor offered the following explanation of her presence:

Prosecutor: I do want to take a moment this morning to introduce the members of the jury and ... the court [to] Laurie Heck, who is Bruce Heek's widow. She will be seen from time to time in the court. Actually, she plans to be here every day. She was not here during jury selection. [To Ms. Heek:] Can you stand up? ‘
[Ms. Heck] was not here during jury selection last week: she lives in Glennal-len, [and] she was in the process of moving down [here].... But she'll be here every day. -

On appeal, Phillips argues that the prosecutor's act of introducing Trooper Heek's widow to the jury was the equivalent of inviting the jurors to step into the shoes of the viectim-a prohibited "golden rule" argument. But this contention overstates what happened. The prosecutor did not ask the jurors to do anything or imagine anything.

As the State correctly notes, Ms. Heck (as the surviving spouse of a homicide victim) had a constitutional right to attend all phases of Phillips's trial. See Article I, § 24 of the Alaska Constitution and AS 12.61.010(a). Not only would Ms. Heck inevitably have come to the jurors' attention because she was a constant spectator, but she in fact testified during the State's case-in-chief, describing her husband's level of health and state of physical well-being at the time of the homicide. Thus, even if the prosecutor had not been allowed to introduce Ms. Heck to the jurors at the beginning of the trial, she would have become known to the jurors during the trial.

'This is not to say that we perceive no problem with the practice of specially introducing crime victims to the jury. The American Bar Association's Standards for the Administration of Criminal Justice suggest that it is unprofessional for a prosecutor to engage in conduct (other than introducing evidence or making fair comment on the evidence) whose primary purpose is to arouse the jurors' passions in a way that will prejudice the jurorg fair consideration of the case."

There are few cases dealing with the introduction of crime victims to the jury. But in at least one egregious case, this practice prompted an appellate court to reverse a criminal conviction. See State v. Henry, 196 La. 217, 198 So. 910 (1940), in which a murder conviction was reversed because the special prosecutor escorted the victim's widow and daughter to seats within ten feet of the jury, then staged an exhibition in which he referred to the widow and daughter as sorrowful, bereaved relatives of the deceased- and later publicly announced that he had adopted these tactics for the purpose of arousing the sympathy of the jury in aid of the state's case. See also Kenneth J. Rampi-no, "Propriety and Prejudicial 'Effect of Prosecutor's Remarks as to Victim's Age, Family Circumstances, or the Like", 50 A.L.R.3d 8, 1973 WL 38841 (1978).

In the present case, the prosecutor's introduction of Trooper Heek's widow to the jury at the beginning of the trial appears to have had no purpose apart from encouraging the jurors to pay attention to her during the trial because she was the living representative of the deceased. Nevertheless, we take judicial notice that attorneys often engage in acts of attentiveness to their clients for the primary purpose of "humanizing" their clients and thereby evoking the jurors' empathy. Like wise, when litigants take the stand, their attorneys often engage in preliminary questions whose answers have little relevance to the matters being litigated, and whose primary purpose is generate juror empathy by explaining the client's background and the client's situation in life. Such tactics are not normally perceived as prejudicing the fairness of the trial. Indeed, we note that Phillips's attorney responded to the prosecutor's gambit by introducing the members of Phillips's family. |__ | .

We further note that Judge Card expressly cautioned the jurors not to allow their decision to rest on "mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling".

Given this record, we conclude that even if it was error for Judge Card to allow the prosecutor to specially introduce Laurie Heek at the beginning of Phillips's trial, that error did not prejudice the fairness of the proceedings.

The jury instruction on causation

Phillips was indicted for first-degree murder. The State asserted that Phillips intentionally killed Trooper Heck by choking him and smothering him with snow when Heck tried to take Phillips into custody. But Phillips claimed that Heck died by accident-that his death arose from a pre-existing heart condition. Phillips asserted that Heck succumbed to heart arrhythmia brought on by the physical effort of chasing Phillips through the woods.

The evidence on this point was conflicting. The State presented the testimony of Dr. Michael Propst, the state medical examiner, who testified that Heck died from asphyxiation resulting from the combined effect of thorax compression (caused by Phillips's act of straddling Heek's chest), windpipe compression caused by the forceful application of some object (such as Phillips's forearm) across Heek's throat, and smothering that occurred when Phillips covered Heck's face with compressed snow.

Phillips countered this testimony with expert testimony of his own. Phillips's primary expert witness was Dr. Ira Kanfer, a pathologist who testified that Heek's injuries were superficial and inconsistent with the State's theory of death by smothering or strangling. Dr. Kanfer believed that Heek died from heart arrhythmia brought on by Heek's fight with Phillips. Phillips's second expert, Dr. Karen Kelly, agreed with this conclusion. She said that if she were signing Heck's death certificate, she would certify the cause of death as "cardiac arrhythmia elicited during a struggle".

Clearly, the jury had doubts concerning the State's allegation that Phillips intentionally killed Heck, for the jury acquitted Phillips of first-degree (intentional) murder. However, the jury apparently agreed with the State that Phillips killed Heck during a struggle that ensued when Heck arrested Phillips in the woods. The jury found Phillips guilty of second-degree (unintentional) murder under three different theories: (1) that Phillips caused Heek's death while acting with intent to cause serious physical injury or knowing that his conduct was substantially certain to cause death or serious physical injury ; (2) that Phillips caused Heek's death while acting with extreme indifference to the value of human life" and (3) that Phillips caused Heck's death while committing the crime of second-degree escape (felony murder) .

On appeal, Phillips contends that the jury's verdicts are flawed by a mistake in the court's instruction on causation.

Judge Card instructed the jury that "(al defendant's conduct need not be the sole factor" in producing the result prohibited by the statute (in this case, human death), and that Phillips could properly be convicted if the jury found that his conduct "was a substantial factor in bringing about the [prohibited] result". This was a correct statement of the law.

Judge Card then told the jury: °

[A] defendant will be held accountable for an injury or death resulting from his conduct even though it can be shown that the injury or death resulted from the combined effects of the act of the defendant and a pre-existing condition of the person killed. This is true even though it is probable that a person in sound physical condition would not have died from the injury inflicted by the defendant, and even though it is probable that the injury inflicted by the defendant only hastened the death of the person. Once a defendant has set events in motion, no condition of the victim relieves the defendant of criminal responsibility for the ensuing injury or death if the defendant's conduct created or enhanced the risk that someone would suffer the type of injury actually suffered by the victim.

Phillips's attorney objected to this portion of the instruction on the ground that it did not require the jury to find that Heek's death was "a direct, natural, and probable consequence" of Phillips's conduct. But such an instruction would have been wrong, or at least substantially misleading.

-If Phillips unlawfully fought with Heek to avoid arrest or to escape following arrest, and if Heck died from the combined effects of this struggle and his pre-existing heart condition, Phillips's conduct would be the cause Heek's death (for purposes of assessing Phillips's guilt of criminal homicide) even if Heek's death was not a "natural and probable consequence" of the sort of struggle that occurred. Under such cireumstances, it would be no defense that Heek's death was an unexpected or unlikely consequence of Phillips's conduct. As 'our supreme court stated in Armstrong v. State, 502 P.2d 440, 445 (Alaska 1972), "[the fact that [a homicide] victim died from the combined effects of a pre-existing disease or condition and a blow or wound maliciously inflicted by the defendant does not relieve the defendant of [erimi-nal] liability [for the resulting death]." Thus, even if Phillips did not strike or choke Heck in a manner that would endanger his life under normal circumstances, and even if Phillips had no way of knowing that Heck suffered from a heart condition; Phillips would nevertheless be criminally responsible for Heek's death if that death resulted from Phillips's unlawful assault combined with Heek's pre-existing heart condition.

On appeal, Phillips words his argument in a slightly different way. He contends that the quoted language from the jury instruction was flawed because it did not instruct the jury to acquit Phillips of murder (and any lesser degree of criminal homicide) if the jury found that Heck's pre-existing heart condition was an "intervening" or "superseding" cause of Heck's death.

But, as a legal matter, if Phillips assaulted Heck, Heck's pre-existing heart condition could not have been a superseding cause of his death. Onee Phillips used unlawful force against Heck, Phillips became responsible for the consequences, even if those consequences were exacerbated by Heck's pre-existing heart condition. As the supreme court stated in Armstrong, "the consequences of an act which is the efficient cause of the death of another are not excused, nor is the [actor's] criminal responsibility for causing death lessened, by the pre-existing physical condition of the person killed".

The only area of difficulty would be if the jury doubted whether Phillips used unlawful force against Heck. For instance, if Phillips had simply run away into the woods and Heck had suffered a heart attack while running after him, there would be a significant question as to whether Phillips could be held criminally responsible for Heek's death.

In his brief to this Court, Phillips identifies this problem. He argues that, under the court's instruction on causation, the jury might have believed that Phillips could be found guilty of criminal homicide if he "set events in motion" (the wording of the instruetion) simply by running from the overturned cab into the woods, even though he never laid a hand on Trooper Heck.

The challenged portion of the jury instruction is potentially ambiguous or incomplete regarding the question of whether Phillips could properly be held accountable for Heek's death if Phillips's role in causing that death was limited to Phillips's act of fleeing into the woods-an arguably unlawful but non-assaultive act.

But this potential ambiguity or incompleteness in the causation instruction was harmless in the factual context of Phillips's case. Phillips did not merely flee into the woods. Rather, Trooper Heck caught up with Phillips and- began the process of arresting him-as manifested by the fact that there was a handcuff fastened to Phillips's left wrist when he was taken into custody by Trooper Pierce. There was further evidence that Phillips used unlawful foree on Heck: in the area surrounding Hecek's body, the snow was trampled down as if there had been struggle, and a great deal of Phillips's blood was found in the immediate area. (Phillips was bleeding from wounds suffered when he drove the cab off the road.)

Both of the defense expert witnesses testified that Heck died from, heart arrhythmia brought on by a physical struggle. And the defense attorney, in his summation, conceded to the jurors "that Mr. Phillips and Trooper Heck [engaged] in a struggle".

Moreover, the jury's three second-degree murder verdicts demonstrate their conclusion that Phillips did more than simply run into the woods-that he in fact used unlawful force against Heck.

The jurors found Phillips guilty of second-degree murder under a felony-murder theory. That is, they concluded that Phillips caused Heek's death while committing see-ond-degree escape. This verdict required the preliminary finding that Heck had placed Phillips under arrest and, according to the jury instruction on felony murder, it also required the jurors to find that Phillips "caused the death of ... Trooper Bruce Heek" "in the course of or in furtherance of [the escape], or in immediate flight from that crime".

The jurors also convicted Phillips of see-ond-degree murder under the theory that he caused Trooper Heek's death "under cireum-stances manifesting an extreme indifference to the value of human life". It is extremely unlikely that the jurors would have viewed Phillips's act of running from the overturned cab as conduct that manifested extreme indifference to the value of human life.

Finally, the jurors convicted Phillips of second-degree murder under the theory that, acting with the intent to inflict serious physical injury,; or knowing that his conduct was substantially certain to cause death or serious physical injury, he caused Heck's death. Again, it is extremely unlikely that the jurors would have viewed Phillips's act of running from the overturned cab as conduct that was intended to inflict serious physical injury, or as conduct that was substantially certain to cause death or serious physical injury. The jurors must have concluded that Phillips assaulted Heck in the woods, and that this assault was a substantial factor in causing Heek's death.

For these reasons, we conclude that any arguable ambiguity or incompleteness in the causation instruction was harmless beyond a reasonable doubt under the facts of Phillips's case and given the way his case was litigated (i.e., the defense concession that Phillips struggled against Heck).

Phillips's sentence

Phillips was convicted of second-degree murder, an unclassified felony that carried a penalty of 5 to 99 years' imprisonment at the time of Phillips's offense." (The penalty range is now 10 to 99 years.) Judge Card found that Phillips was a worst offender, and he sentenced Phillips to the maximum sentence: 99 years' imprisonment.

Phillips was also convicted of two counts of first-degree robbery, a class A felony with a maximum penalty of 20 years' imprisonment. Based on his prior felony convie-tions, Phillips was a "third felony offender" for presumptive sentencing purposes, and he therefore faced a presumptive term of 15 years' imprisonment on each count of robbery. With regard to these two counts of robbery (one count for each victim, Roberto Cuautle and his daughter, Liliana Hernin-dez), Judge Card again found that Phillips was a worst offender, and he sentenced Phillips to a composite term of 25 years' imprisonment, consecutive to the murder sentence.

Additionally, Phillips was convicted of two counts of second-degree assault against Cuautle and Herngndez. Second-degree assault is a class B felony with a maximum sentence of 10 years' imprisonment. As a third felony offender, Phillips faced presumptive terms of 6 years' imprisonment for these crimes." Judge Card sentenced Phillips to a composite term of 14 years' imprisonment, consecutive to the murder sentence and the robbery sentences.

Judge Card also imposed a total of 8 years with 4 years' imprisonment for Phillips's other offenses: second-degree escape and first-degree vehicle theft.

All told, Phillips received a composite sentence of 142 years to serve.

On appeal, Phillips challenges this sentence as excessive. He contends that his second-degree murder sentence should have been within the 20-to 80-year benchmark range established by this Court in Page v. State, 657 P.2d 850, 855 (Alaska App.1983). Phillips concedes that he could properly receive additional time to serve for the robberies, but he argues that his composite sentence for all of these erimes should not have exceeded 40 years to serve.

The Page benchmark sentencing range was intended to demarcate the range of actual imprisonment ("time to serve") that a sentencing judge should impose on a typical first felony offender convicted of a typical second-degree murder. Phillips is not a typical first felony offender. He is a third felony offender, and his status is further aggravated by the fact that he committed this murder just two days after being released from prison on felony parole. These facts, standing alone, would justify a murder sentence above the Page benchmark range.

In addition, it was proper for Judge Card to conclude that Phillips's erime was aggravated because the victim was a law enforcement officer engaged in his duties. Compare AS 12.55.125(c)(2), which imposes a more severe presumptive term on first felony offenders convicted of class A felonies if their offense was "knowingly directed [toward] a uniformed or otherwise clearly identified peace officer ... who was engaged in the performance of official duties at the time of the offense".

However, we are troubled by one aspect of Judge Card's sentencing remarks. When Judge Card was explaining the reasons why he believed that Phillips should receive a sentence above the Page benchmark range, the judge referred to-and misapplied-our decision in Gustafson v. State, 854 P.2d 751 (Alaska App.1993).

In Gustafson, we were asked to reconcile the Page benchmark (20 to 30 years to serve) with a statement we made in State v. Krieger, 731 P2d 592 (Alaska App.1987), that "Iwhen] a homicide is unintentional, [past] appellate [decisions] indicate that ... a sentence of ten years or less is sufficient to satisfy the Chaney [sentencing] criteria."

The defendant in Gustafson argued that, given this statement in Krieger, any second-degree murder defendant who did not intend to kill their vietim should receive a sentence below the Page benchmark. We rejected this argument because, by definition, all see-ond-degree murders are unintended homicides. Thus, it would be inconsistent with Page if we limited sentences to 10 years to serve whenever the death was unintended. Instead, we declared that the statement in Krieger referred to homicides caused by non-assaultive conduct or "unintentional assaults" (since the Alaska criminal code now contains various types of reckless and negligent assaults).

(Since that time, we have also rejected the suggestion in Krieger that the Chaney criteria will always be satisfied by a sentence of 10 years or less to serve for second-degree murder stemming from an unintentional assault. Krieger's 10-year ceiling was based on the Alaska Supreme Court's decision in Pears v. State, which was interpreted as setting a 10-year ceiling on sentences for vehicular homicide, even when the defendant was convicted of second-degree murder. But later, in State v. Bumpus, the supreme court disavowed this interpretation of Pears. Accordingly, this Court has upheld sentences exceeding 10 years to serve for second-degree murder arising from an unintentional assault.")

Our decision in Gustafson clarified that, despite what was said in Krieger, Page continues to supply the benchmark sentencing range for second-degree murders arising from intentional assaults. But Judge Card's sentencing remarks suggest that he misunderstood our holding in Gustafson. Instead of construing Gustafson to mean that Page continued to supply the benchmark range for second-degree murders arising from intentional assaults, Judge Card interpreted Gus-tafson to mean that any second-degree murder arising from an intentional assault must be among the most serious second-degree murders, an offense equivalent in blameworthiness to first-degree murder:

The Court: I looked at the Gustafson case, ... which says that killing is intentional if it [arises] from an intentional assault. In [Phillips's] case, [his] fighting with the officer was an intentional assault. It was [his] intention to get away from the trooper, [so] he intentionally assaulted the trooper. That effectively makes this [killing] an intentional act as opposed to a reckless [or] a grossly negligent [act], or any other terms we use for [culpable] mental states.
The [second-degree] murder ... in this case is more clogely akin to murder in the first degree, because of the Gustafson logic, in that Mr. Phillips intentionally-as that term is used in Gustafson-intentionally did acts which caused the death of Trooper Heck, and it was totally without provocation.

This reasoning stands the Gustafson decision on its head. Gustafson acknowledges that second-degree murders stemming from non-assaultive conduct are typically among the least serious; but Gustafson does not say that second-degree murders stemming from intentional assaults are necessarily among the most serious.

Judge Card's interpretation of Gustafson would render the category of "typical" see-ond-degree murders a null set-for this category would include neither intentional nor unintentional assaults. Moreover, such an interpretation of Gustafson would be fundamentally at odds with the definition of see-ond-degree murder. Under AS 1141.110(a)(1), a person commits second-degree murder if they unintentionally kill another person while committing an assault whose purpose is to inflict serious physical injury. That is, assaultive conduct is a required element of the offense under this subsection of the statute-so, logically, this same assaultive conduct can not, per se, automatically constitute the most serious conduct within the definition of the offense.

In Phillips's case, the jury found that Trooper Heck met his death because Phillips intentionally assaulted the trooper and, when doing so, Phillips either intended to seriously injure the trooper or he knew that his assault was substantially certain to cause death or serious physical injury to the trooper. But, as just explained, this is the basic definition of the offense under subsection (a)(1) of the second-degree murder statute. Judge Card was wrong when he concluded that Phillips's intentional assault on Trooper Heck meant that the resulting homicide was automatically equivalent in blameworthiness to first-degree murder, or that Phillips should presumptively receive the 99-year maximum sentence for second-degree murder.

Because of this, we vacate Phillips's sentence for second-degree murder and we direct Judge Card to reconsider that sentence.

Conclusion

For the reasons explained above, we AFFIRM Phillips's convictions for murder, escape, robbery, assault, and vehicle theft.

(We do, however, direct Judge Card to amend the written judgement so that it reflects a single conviction for second-degree murder based on the jury's three second-degree murder verdicts. Phillips can not lawfully be convicted of more than one murder for killing a single vietim.)

We VACATE Phillips's sentence for see-ond-degree murder, and we direct Judge Card to re-sentence Phillips in accordance with the explanation of Gustafson contained in this opinion. The re-sentencing should occur within 90 days of the issuance of this opinion.

When Judge Card has re-sentenced Phil-Hips, he shall notify this Court. At that point, Phillips shall notify this Court whether he intends to renew his claim that his composite sentence is excessive. If Phillips wishes to continue his sentence appeal, the Clerk's Office shall order preparation of a transcript of the re-sentencing hearing.

Upon certification of this supplemental transcript, Phillips shall have 80 days to file a supplemental sentencing brief (which can be filed in memorandum form). The State shall have 30 days thereafter to file its own supplemental sentencing brief. When we have received these briefs, we shall resume our consideration of Phillips's sentence appeal.

We retain jurisdiction of this appeal.

      . Newcomb, 800 P.2d at 942-43.

      . Maynard, 652 P.2d at 491.

      . Id.

      . Id. at 1173.

      . Holbrook v. Flynn, 475 U.S. 560, 570-171, 106 S.Ct. 1340, 1347, 89 L.Ed.2d 525 (1986).

      . Cheely v. State, 861 P.2d 1168, 1178 (Alaska App.1993); Gorz v. State, 749 P.2d 1349, 1355 (Alaska App.1988).

      . See Beaumaster v. Crandall, 576 P.2d 988, 994 (Alaska 1978); Mallonee v. Finch, 413 P.2d 159, 164 (Alaska 1966) (holding that it is improper for an attorney to implore jurors to put themselves in the position of one of the litigants and then ask themselves what kind of outcome they would wish under the circumstances). For an application of this rule in a criminal case, see United States v. Teslim, 869 F.2d 316, 328 (7th Cir.1989) (holding that it is improper for a prosecutor to urge the jury to place themselves in the victim's shoes).

      . Article I, § 24 states in pertinent part: "Crime victims, as defined by law, shall have the following rights as provided by law: ... the right to confer with the prosecution; the right to be treated with dignity, respect, and fairness during all phases of the criminal and juvenile justice process; the right to timely disposition of the case following the arrest of the accused; the right to obtain information about and be allowed to be present at all criminal or juvenile proceedings where the accused has the right to be present; [and] the right to be allowed to be heard, upon request, at sentencing, before or after conviction or juvenile adjudication, and at any proceeding where the accused's release from custody is considered[.]"
      See also AS 12.61.010(a), which clarifies that a crime victim has the right to be present at any proceeding where the defendant has the right to be present, "even if the victim is likely to be called as a witness".
      Under AS 12.61.900(3), which adopts the definition of "victim" codified in AS 12.55.185(16)(C), if the person against whom the offense was committed is dead, the term "victim" includes "a person living in a spousal relationship with the deceased before the deceased died".

      . See, for instance, Standard 3-5.6, which de- - clares that "(ift is unprofessional conduct for a prosecutor to permit any tangible evidence to be displayed in the view of the ... jury which would tend to prejudice fair consideration by the ... jury until such time as a good faith tender of such evidence is made.

      . AS 11.41.110(a)(1).

      . AS 11.41.110(a)(2).

      . AS 11.41.110(a)(3).

      . See State v. Malone, 819 P.2d 34, 36 (Alaska App.1991); Rollin M. Perkins & Ronald N. Boyce, Criminal Law (3rd edition 1982), pp. 779-780.

      ~14. Id. at 445, quoting Anderson, Wharton's Criminal Law and Procedure (1957), § 201, Vol. 1, pp. 450-55.

      . AS 11.41.110(b), AS 12.55.125(b) (1998 version}.

      . See SLA 1999, ch. 65, § 1.

      . AS 11.41.5000-3); AS 12.55.125(c).

      . AS 12.55.125(c)(4).

      . AS 11.41.210(b); AS 12.55.125(d).

      . AS 12.55.125(d)(2).

      . See Brown v. State, 4 P.3d 961, 964 (Alaska App.2000); Sam v. State, 842 P.2d 596, 603 (Alaska App.1992).

      . See AS 12.55.155(c)(20).

      . Krieger, 731 P.2d at 595, referring to State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).

      . Gustafson, 854 P.2d at 765-66, AS 11.41.110(a).

      . Gustafson, 854 P.2d at 766.

      . 698 P.2d 1198, 1205 n. 15 (Alaska 1985).

      . See Krieger, 731 P.2d at 595.

      . 820 P.2d 298, 302 (Alaska 1991).

      . For example, in Puzewicz v. State, 856 P.2d 1178 (Alaska App.1993), we upheld a sentence of 13 years to serve for second-degree murder stemming from a motor vehicle accident. See also Pusich v. State, 907 P.2d 29 (Alaska App.1995), where we upheld a sentence of 18 years to serve for manslaughter and first-degree assault arising from a motor vehicle accident.