author: STEWART, Judge.

text:
    Charles J. CONRAD, Appellant, v. STATE of Alaska, Appellee.
    No. A-8065.
    Court of Appeals of Alaska.
    Sept. 27, 2002.
    Eugene B. Cyrus, Law Office of Eugene Cyrus, P.C., Eagle River, for Appellant.
    Robert J. Collins, Assistant District Attorney, Palmer, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

This case requires us to construe the offense of driving while intoxicated under AS 28.85.080(a)(2). This subsection of the statute makes it a crime to operate or control a motor vehicle "when, as determined by a chemical test taken within four hours after the alleged offense," a person's blood contains 0.08 percent or more alcohol (by weight) or a person's breath contains 0.08 grams or more aleohol per 210 liters.

The question is this; Does AS 28.35.030(a)(2) define the offense in terms of the test result-so that the State must prove only that the chemical test yielded a result of 0.08 or higher (assuming the test was properly administered within the prescribed four hours)? Or does the statute require the State to prove that the defendant's blood alcohol level was 0.08 or higher at the time the defendant operated or controlled a motor vehicle-so that the test result is merely cireumstantial evidence of the fact that must ultimately be proved?

As we explain in this opinion, we conclude that the statute requires proof of the defendant's blood alcohol level at the time the defendant operated or controlled a motor vehicle.

Underlying proceedings

Charles J. Conrad was tried for driving while intoxicated under both the "impairment" theory codified in AS 28.85.030(a2)(1) and the "blood alcohol level" theory codified in AS 28.35.030(2)(@2). The trial judge instructed the jury that, for purposes of assessing Conrad's guilt under the "blood alcohol level" theory, it was sufficient for the State to prove that a chemical test administered within four hours of Conrad's operation of the vehicle yielded a result of 0.10 or greater.

The State's evidence showed that, about an hour and a quarter after Conrad was stopped by the police, he submitted to an Intoximeter test; the test result was a blood alcohol level of 0.154 percent. One half-hour later, Conrad obtained an independent blood test; this test showed that Conrad's blood aleohol level was 0.131 percent.

Conrad presented what he called the "big gulp" defense: He claimed that he had quickly consumed two beers just before he drove. Conrad contended that even though his blood aleohol level was illegally high an hour or so later after he was stopped, his blood alcohol level had been within legal limits at the time he was driving.

At trial, Conrad presented an expert witness-retired pathologist Donald R. Rogers-to explain that, based on Conrad's blood test result, and using the assumption that Conrad had consumed two beers just before driving, and using average alcohol absorption and elimination rates, Conrad's blood aleohol level at the time he was driving could have been less than 0.10 percent.

But, as explained above, the trial judge instructed the jury that Conrad's proposed defense was actually no defense; the judge told the jury that Conrad's guilt hinged on the test result and not his actual blood aleo-hol level at the time he was driving. The jury convicted Conrad, returning a general verdict that did not specify whether they found Conrad guilty under subsection (a)(1), subsection (a)(2), or both.

A defendant's guilt under AS 28.35.030(a)(2) hinges on the defendant's blood alcohol level at the time the defendant operated or controlled a motor vehicle, not on the defendant's test result

In Mangiapane v. Anchorage, we were called upon to construe the meaning of AS 28.40.060, a statute that declares that a driver's chemical test result is not to be adjusted to account for the testing instrument's margin of error. In the course of our discussion in Mangiapane, we described AS 28.35.030(a)(2) in a way that suggested that a driver's guilt rests on the driver's test result:

AS 28.40.060 effectively declares that a driver violates AS 28.85.080(a)(2) if, within four hours of driving, the driver is tested on a properly calibrated, properly functioning Intoximeter and the driver's test result is at least .10 percent blood-aleohol or the equivalent .10 grams of alcohol per 210 liters of breath. The fact that the driver's true blood-aleohol or breath-aleohol level may be slightly lower (due to the Intoxime-ter's acknowledged margin of error) is no longer relevant to the driver's guilt under AS 28.35.030(a)(2).

We now conclude that we did not speak carefully enough.

The issue in Mangiapane was the effect of the newly enacted AS 28.40.060. Mangic-pane did not directly raise the issue that confronts us in Conrad's case: Whether the State must prove that a motorist's blood alcohol level was above the legal limit at the time of the testing or, instead, at the time the motorist operated or controlled the vehicle.

In Doyle v. State, we construed a related statute-AS 28.35.083-that establishes various presumptions as to whether or not a driver is impaired by alcohol, depending on the result of the driver's chemical test. In Doyle, we construed this statute to create a rebuttable presumption that a driver's blood alcohol level at the time of the offense was equivalent to the result of the chemical test administered to the driver later.

In other words, Doyle suggests that the ultimate fact to be proved is the driver's blood aleohol level at the time of the offense, not at the time of the test. At the same time, however, Doyle interpreted AS 28.35.0833 as authorizing the State to rely on the presumption that the driver's test result was at least as high as the driver's blood alcohol level at the time of the offense-so that "it would [not] be necessary for the state to call expert witnesses in every case to establish by extrapolation the blood aleohol content of the defendant at the time of the alleged offense.

It appears that the Alaska Legislature would have the authority to define the offense in terms of the defendant's test result at a test administered within a specified time after the defendant operated or controlled a motor vehicle-even though the test result might be higher than the defendant's blood alcohol level at the time the defendant operated or controlled the vehicle. Our review of case law and statutes from other jurisdictions reveals that a number of state legislatures have done this.

In these states, however, the statutes clearly specify that a defendant's guilt rests on the test results and that the defendant's actual breath or blood alcohol content at the time of driving is not an element. For example, the Arizona Court of Appeals explained that its state legislature had "concluded that a person with a [blood alcohol content] of 0.10 or greater within the two-hour period poses a sufficient danger to the public to justify broadening the statutorily proscribed conduct. The New Jersey Supreme Court found that its state legislature reached the same general conclusion.

But the wording and history of AS 28.35.030(a)(2) yield no such expression of legislative intent. We find no indication that the Alaska Legislature, either when it passed AS 28.85.030(a)(2) or when it later passed AS 28.40.060, intended to shift the focus away from the defendant's blood aleohol level at the time of driving and to make the test result determinative of the defendant's guilt.

Accordingly, despite the wording of our decision in Mangiapane, we conclude that a defendant's guilt under AS 28.35.030(a)(2) hinges on the defendant's blood alcohol content at the time the defendant operated or controlled a motor vehicle. At the same time, we re-affirm the approach we took in Doyle: If a chemical test is administered to the defendant within the statutorily prescribed four hours, the test result will create a presumption that the defendant's blood alcohol level was at least as high at the time the defendant operated or controlled the vehicle (And, as stated in AS 28.40.060, the test result is not to be adjusted for the testing machine's margin of error.)

The defendant may introduce evidence to rebut this presumption (as Conrad did in this case), but if the presumption is unrebutted-either because the defendant does not challenge it, or because the jury does not believe the defendant's contrary evidence-then the presumption created by the test result is enough to support a conviction.

(Of course, the State may choose to introduce evidence to show that a defendant's blood alcohol level at the time of the offense was actually higher than at the time of the test.)

Conclusion

The judgment of the district court is REVERSED. Conrad is entitled to a new trial.

      . Conrad was prosecuted under the former version of AS 28.35.030(a)(2). Since then, the legislature has lowered the allowable level of alcohol to 0.08 percent.

      . 974 P.2d 427 (Alaska App.1999).

      . 974 P.2d at 430 (emphasis in original).

      . 633 P.2d 306 (Alaska App.1981).

      . See id. at 309-10.

      . Id. at 310.

      . See, eg., State v. Oliver, 343 N.C. 202, 470 S.E.2d 16, 23-24 (1996) (the per se offense prohibits driving on a state highway having "consumed sufficient alcohol that at any relevant time after the driving the defendant had an alcohol concentration of [0.08] or more"); State v. Martin, 174 Ariz. 118, 847 P.2d 619, 623 (App.1993) ([S]ection 28-692(A)(2) now provides that it is illegal to have a BAC of 0.10 or more within two hours of driving-rather than a BAC of 0.10 at the time of the offense as provided in former section 28-692(A)(2)"); Purser v. State, 201 Ga.App. 839, 412 S.E.2d 869, 870 (1991) (among other things, the DWI statute "made it unlawful for a person to drive or to be in physical control of a moving vehicle after having consumed alcohol if at any time within the three-hour period after such driving or being in physical control ended, he or she registered a blood-alcohol concentration of 0.12 grams or more as a result of such prior alcohol consumption."); State v. Tischio, 107 N.J. 504, 527 A.2d 388, 388-89 (1987) (court ruled that "it is the blood-alcohol level at the time of the breathalyzer test that constitutes the essential evidence of the offense.").

      . Cacavas v. Bowen, 168 Ariz. 114, 811 P.2d 366, 368 (App.1991).

      . State v. Tischio, 107 N.J. 504, 527 A.2d 388, 388-89 (1987).

      . See Erickson v. Anchorage, 662 P.2d 963, 967 (Alaska App.1983) (Singleton, J., concurring) (''the breathalyzer result alone established a pri-ma facie case, entitling the municipality to go to the jury on the issue of Erickson's blood-alcohol level at the time of her driving.").


source: Caselaw Access Project

author: COATS, Chief Judge.

license: Public Domain

text:
    Kevin W. PEASE, Appellant, v. STATE of Alaska, Appellee. Marvin L. Roberts, Appellant, v. State of Alaska, Appellee.
    Nos. A-7635, A-7638.
    Court of Appeals of Alaska.
    Sept. 27, 2002.

      Lori M. Bodwell, Law Office of Lori M. Bodwell, and Dick L. Madson, Law Office of Dick L. Madson, Fairbanks, for Appellant.
    WH. Hawley, Jr., Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

The state charged Marvin L. Roberts, Kevin W. Pease, Eugene G. Vent, and George C. Frese with the assault and robbery of Franklin Dayton and the robbery, sexual assault, and murder of a fifteen-year-old juvenile, J.H. These erimes occurred during the early morning hours of October 11, 1997. Pease and Roberts were tried together. A jury convicted both defendants of second-degree assault of Dayton and of first-degree robbery and second-degree murder of J.H. Frese and Vent were convicted in separate trials and their appeals are pending before this court.

Superior Court Judge Ben J. Esch sentenced Pease to a total term of seventy-five years with fifteen years suspended. He sentenced Roberts to a total term of forty-two years with ten years suspended. Pease and Roberts raise several issues in their appeal to this court. We affirm their convictions but remand a portion of their sentences for reconsideration.

Factual Background

a. The assault and robbery of Franklin Dayton

Arlo Olson testified that he witnessed the assault of Franklin Dayton. Olson attended a wedding reception, which began on the night of October 10, 1997, at the Eagles Hall in Fairbanks. According to Olson's testimony, he was standing on the front steps of the Eagles Hall between 12:30 and 1:00 a.m. on October 11, 1997, when Roberts, Pease, Vent, and Frese drove up in Roberts's blue, two-door car. Frese asked Olson if he wanted to get high. Olson declined, and the four drove away.

Dayton also attended the wedding celebration. According to Dayton's testimony, at about 1 am. on October 11, after having several drinks, he left the reception and walked toward Tommy's Elbow Room. As Dayton was walking, a car stopped behind him. Someone from the ear tripped Dayton, pushed him down, stepped on his hand, kicked him in the ribs, and took his money. Someone told Dayton not to "look back"; Dayton did not recognize the voice. Dayton thought the robbers said something about having a gun but was not sure. He heard two doors slam after the attackers took his money and left. He thought about four people robbed him and they drove a tan car. He did not recognize any of them.

Dayton returned to the Eagles Hall He told his sisters, Katherine Quirk and Vaughn Reitan, that the four robbers had put a gun to his head and "threatened that he wasn't going to be the only one." He told them he was thrown face-down and could not identify any of the four assailants. Dayton's sister-inlaw, Susan Paskvan, called 911 at 1:85 am., and his two sisters took him to the hospital.

Olson testified that about half an hour after he talked with Vent, Frese, Roberts, and Pease, he watched the four assault Dayton down the street from the front steps of the Eagles Hall. He saw Pease push Dayton to the ground. Frese, Pease, Vent, and Roberts then all kicked Dayton. One of the four men yelled, "Give me your fucking money, bitch," and Dayton handed something to one of the four. Olson watched the four men run to and enter Roberts's car.

The accuracy of Olson's testimony was seriously disputed at trial. Olson admitted that he had drunk a considerable amount on the evening in question and had smoked marijuana earlier in the day. He testified that the fight only lasted about thirty seconds, that the assailants had their backs to him half the time, and that he really only got a look at them while they were running back to their car. He estimated that the assault occurred about 400 feet away from him. The defense presented evidence that the distance was greater than that.

But the state presented evidence that OL-son was able to identify the defendants. Not only had he seen them earlier in the evening, but Olson and Vent had been friends since Olson's junior year in high school. Olson met Frese in the summer of 1997, had been to his house, had talked to him frequently, and considered him a friend. Olson also identified Roberts, Pease, and Roberts's car at trial.

b. The murder and robbery of J.H.

J.H., age fifteen, met his mother at her job during the afternoon of October 10, borrowed some money, and put it in his wallet. He spent the evening of October 10 with Chris Stone at a Fairbanks residence where a third friend was babysitting. The boys took some prescription drugs during the evening to get high. After consuming some of the pills, J.H. fell out of a chair and had a seizure. J.H. and Stone left the babysitting residence after midnight. At about 1:15 a.m., J.H. and Stone parted company near downtown Fairbanks, and J.H. started walking home alone.

At 1:28 am. on October 11, Melanie Durham, a resident of the Fairbanks WICCA shelter, who had been watching TV, stepped outside to have a cigarette. Minutes later, Durham heard a "really horrendous [loud] smack, smack." The "smacks" were followed by someone calling, "Help me, help me," who then was quieted by more "smacks." She heard a highly intoxicated, slurred, deep voice with a Native accent growl something indistinguishable. Durham then heard more

smacks, really just it was horrendous.... [The way it sounded was like whatever was hitting this kid, ... it was wrapping around, that's how bad it sounded. And then, I heard some more, then a[n] angry voice, and I realized it was really bad, and that whoever was getting hit wasn't saying anything.

The sounds were coming from the intersection of Ninth and Barnett, half a block from the shelter, but Durham's view of the intersection was obstructed.

Sometime before 2:00 am., Stone used a phone at Carrs Foodland. While Stone was using the phone, Pease, standing nearby, stared at him to the point that Stone felt uncomfortable. Stone saw a car parked nearby that looked like Roberts's car. No one was sitting in the driver's seat, but the car was otherwise full.

At about 2:45 a.m., citizens driving on Bar-nette Street spotted J.H. lying partly on the street and partly on the sidewalk at Ninth and Barnette. J.H. was badly beaten, his pants were down around his knees, and his personal effects were scattered in the street. One of the citizens called 911, and paramed-ies responded and took J.H. to the hospital.

The width and distance between tire marks observed at the scene were similar to the width and distance between the tires on Roberts's car.

A sexual-assault nurse-examiner, Diane Hill, examined J.H. at the hospital Hill observed that J.H.'s anal verge was swollen and red, and she saw minute tears all around his anal verge. Hill also observed a large, deep, long tear on J.H.'s anus. Using an anoscope, she found two abrasions on the wall of the rectum three or four inches inside the anal verge.

About noon, that day, October 11, Frese sought treatment for an injured foot at the Fairbanks Memorial Hospital emergency room. Frese said that he had injured his foot by kicking someone during a fight downtown the night before. The police obtained the hiking boots Frese was wearing during the fight. Fairbanks Police Lieutenant David Kendrick and Julie Klaker, a nurse, compared the tread of Frese's shoe with the injury on the left side of J.H.'s head. Kendrick found the similarity between the lug pattern on the shoe and the lug imprints on J.H.'s face striking. Klaker said the print on the bottom of the shoe "matched up" to the print on J.H.'s face.

JH. died on October 12. Dr. Frane Falli-co performed the autopsy. During the external examination, Dr. Fallico observed multiple separate injuries on J.H.'s head and body. During the internal examination, Dr. Fallico found blood and blood clots on the surface of the brain and hemorrhages in the mid-brain; he attributed J.H.'s death to blunt-force trauma to his head. He found two scratches inside J.H.'s colon about four inches from his anus. Dr. Fallico found similarities between the tread pattern on Frese's shoes and the pattern on J.H.'s head. At trial, however, the defense presented an expert, Dr. John Thornton, who concluded that the shoes the police seized from Frese did not make the prints on J.H.'s face.

Pease told the police that he had not seen Roberts, Frese, or Vent on the night of October 10-11, claiming he had been with his girlfriend, Jessica Lundeen. But Lundeen denied having seen Pease at any time during the evening and night of October 10-11. Pease presented an alibi defense based on several witnesses who testified he had been at two parties on the evening in question.

The state also presented evidence from two people who were in jail with Pease prior to trial. According to Angela Harman, she asked Pease why he had murdered J.H. In response, Pease stated that, "[I] did it for the punk's money." A second inmate, John Hef-fle, asked Pease if he had committed the murder. Pease responded, "I was fucked up, and it was bad."

Roberts also presented an alibi defense at trial. Several witnesses testified that he was at the Eagles Hall at the time the assaults occurred.

The jury convicted Pease and Roberts of second-degree assault of Dayton and first-degree robbery and second-degree murder of J.H. This appeal followed.

Whether Judge Steimnkruger erred in failing to sever for trial the charges relating to the assault of Dayton from the charges relating to the robbery and murder of J H.

Frese filed a motion to sever the charges relating to the assault on Dayton from the charges relating to the robbery and murder of J.H. He argued that the jury might improperly use the evidence of the Dayton assault to convict him of the robbery and murder of J.H. The state opposed the motion, and Superior Court Judge Niesje J. Stein-kruger denied the motion to sever without discussion. After Judge Steinkruger denied the motion, Pease moved without opposition to join Frese's motion. The record does not reflect that Judge Steinkruger took any action on Pease's application to join the severance motion.

Pease and Roberts concede that it was permissible under the Alaska Criminal Rules to join the Dayton and J.H. charges, but they argue that the evidence against them in the Dayton case was much stronger than in the J.H. case. They claim that the evidence in the Dayton case improperly bolstered the J.H. case.

The state argues that Roberts waived the severance issue by not moving to sever before trial. Roberts contends that an objection made by one codefendant is deemed to have been made by all codefendants absent an objection. But generally, a defendant may not rely on a codefendant's motion or objection absent a special agreement with the trial court. And we have not found an agreement on the record that would allow Roberts to rely on Pease's motion. But we need not resolve this issue because, as we explain below, we conclude that Judge Stein-kruger did not err in denying the motion for severance.

The state argues that Pease waived his severance claim because he did not renew it at trial. But we stated in Mathis v. State that a defendant does not need to renew a motion for severance at trial if the trial court clearly and unequivocally rules on the claim before trial Of course, if circumstances arise during trial that undermine the judge's earlier decision denying severance, the defendant has a duty to renew the motion for severance during trial to allow the trial judge to consider the actual cireumstances as they arise at trial Because Judge Steinkruger decided the motion before trial and the motion was not renewed, we conclude that we should review the defendants' claim of prejudice based on the information presented to Judge Steinkruger before trial.

Onee joined, a motion to sever offenses encompasses two separate inquiries. First, the trial court must determine whether the charged offenses are so related as to make joinder proper. Second, the court must determine whether joinder of the offenses for trial would unduly prefudice the defendants Because the defendants have conceded proper joinder, the only issue before us is whether Judge Steinkruger's decision unduly prejudiced the defendants.

This court will only overturn a trial court's denial of a motion to sever if the defendant can show both an abuse of discretion and actual prejudice. The first step in deciding whether Judge Steinkruger erred in denying the motion to sever is to determine whether Judge Steinkruger could conclude that the evidence of the crimes would be cross-admissible if tried separately. If the evidence would be cross-admissible if tried separately, the defendant is hard-pressed to show actual prejudice from the failure to sever, since the evidence would have been admitted even if the judge had granted separate trials. If the trial court determines the evidence is not cross-admissible, the second step is to decide whether Judge Steinkruger abused her discretion when she found the defendants would not suffer actual prejudice from having this otherwise inadmissible evidence admitted at the joint trial.

In the present case, the pretrial motion claimed that the evidence of the assault on Dayton would prejudice the defendants by influencing the jury in deciding whether the defendants robbed and murdered J.H. But if evidence of the assault on Dayton would have been admitted in a separate trial involving whether the defendants robbed and murdered J.H., then the defendants did not suffer any prejudice by its admission at the joint trial. As we explain below, we conclude that Judge Steinkruger did not err in determining that the evidence of the earlier assault on Dayton would have been admissible in a separate trial on the charges that the defendants robbed and murdered J.H.

The facts alleged in the severance pleadings established that the assault on Dayton and the robbery and murder of J.H. occurred within forty-five minutes of each other. OIl-son saw Roberts, Pease, Vent, and Frese assault Dayton. Dayton was attacked by several people who beat and robbed him while he was walking alone in downtown Fairbanks. The evidence suggested that J.H. had undergone a similar, but more vicious, attack.

We have previously approved the admission of evidence that a defendant committed a related offense within a short period of time of another offense. In Hoffman v. State, in defense of a sexual assault charge, Hoffman argued consent. This court approved admission of evidence that Hoffman had violently sexually assaulted a different woman just prior to his charged assault. We reasoned that the prior assault was relevant to the charged offense because it could be "inferred that Hoffman was in the same emotional state during both encounters. In Hoffman, we relied on Lerchenstein v. State, where we held "that Evidence Rule 404(b) allowed the introduction of evidence that a murder defendant had been 'angry and combative ... immediately prior to the [homicide]

In Miller v. State, we held that Miller's robbery and burglary at a near-by trailer less than an hour before the charged murder were "directly relevant to establish Miller's state of mind at the time of the murder, to show that he was acting in concert with [his codefendant], and to prove his capacity to form the specific intent required for murder. Likewise, in Cliervo v. State, we approved the state's evidence of a confrontation between Ciervo and another individual five hours prior to the charged shooting.

Hoffman, Ciervo, and Miller support the admissibility of the evidence of the Dayton incident at a separate trial on the J.H. charges. Because the crimes were committed within a close temporal and physical proximity to each other, apparently involved the same perpetrators, and consisted of similar attacks on the victims, the evidence of each crime would have been cross-admissible under Rule 404(b)(1) to prove state of mind and sequence of events.

The defendants argue that even though the evidence of the Dayton offense would have been admissible under Evidence Rule 404(b), Rule 403 would have prevented it from being introduced at a separate trial because the case against the defendants on the robbery and murder of J.H. was weak. They argue that they were prejudiced by admission of the stronger Dayton assault evidence, and the jury might have improperly used that evidence to convict them of the robbery and murder of J.H. In our view, Judge Stein-kruger properly could determine that the evidence that the defendants were together during the assault and robbery of Dayton was substantial evidence that the defendants had, only a short time later, committed a similar assault on J.H. that ultimately led to his death. The superior court properly could determine that admission of this evidence was not unduly prejudicial.

Because the evidence of the Dayton incident would have been admissible at a separate trial on the J.H. incident, Judge Stein-kruger did not err under Criminal Rule 14 in denying the motion to sever the charges.

Whether Pease and Roberts should be granted a new trial based upon Judge Esch's ex parte imterview of a juror

During trial, Judge Esch informed the parties that a juror had approached him, wanting to talk privately. He told the parties he would meet with the juror on the record to see what he wanted and then talk to the parties.

He met with the juror, Rhett Buchanan, who said he was concerned about the defense attorneys' conduct. Buchanan mentioned Pease's attorney, Lori Bodwell, but primarily cited two incidents involving Roberts's attorney, Dick Madson, where the juror thought Madson's conduct had been inappropriate. Judge Esch told Buchanan he would talk to the attorneys and ask them to act more professionally. Buchanan said that would be fine, and the conversation ended.

When the court reconvened after the weekend, Judge Esch informed the parties that his conversation with Buchanan had not been picked up by the tape and therefore there was no record of the conversation. He told the attorneys that Buchanan was concerned with Madson's conduct and gave the specific examples. Judge Esch told the parties that Buchanan had indicated he would not hold his concerns against Roberts. The parties did not raise any objections about Judge Esch's meeting with Buchanan or ask Judge Esch to take any additional action. Contrary to Judge Esch's understanding, his conversation with Buchanan was successfully recorded.

Roberts and Pease first contend that Judge Esch violated their right to be present by resolving Buchanan's concerns without consulting them. They also assert that before talking to Buchanan, Judge Esch told them only that he was going to listen to Buchanan's concerns. They argue that they were misled because Judge Esch actually had a conversation with Buchanan. Furthermore, having reviewed the tape recording, they contend that Judge Esch made significant omissions in what Buchanan said. In the first place, Judge Esch never mentioned that Buchanan indicated he had some concerns about Bodwell, Pease's attorney. Second, Buchanan never said that he would not hold Madson's behavior against Roberts. They point out that, because Judge Esch informed them that the conversation with Buchanan had not been recorded successfully, they had no opportunity to review the court's actions or object until after the tran-seript revealed the full conversation.

In general, eriminal defendants have the right to be present at every stage of the proceedings following their indictment. The right to be present is rooted in the defendant's constitutional right to confront the witnesses against him. And, it is protected by the guarantee of due process "in some situations where the defendant is not actually confronting witnesses or evidence against him."

The defendant's right to be present extends not only to those proceedings in which the defendant confronts adverse witnesses or evidence but also to "any trial-related proceeding at which defendant's presence has a 'reasonably substantial relation to defendant's ability to defend against the criminal charge"-that is, to "any stage of the eriminal proceeding that is critical to its outcome if [the defendant's] presence would contribute to the fairness of the procedure."

If a defendant has a constitutional right to be present at a proceeding, the defendant must personally waive his right to be present or expressly consent to allow the proceeding to occur outside his presence.

While a defendant has the right to be present at every stage of the trial where his presence could have an impact on the decision process, at least under federal law, he does not have an absolute right to be present at every communication between a judge and juror. "[The mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right." For instance, in United States v. Olano, the Ninth Circuit held the trial court did not violate the United States Constitution by meeting with a juror outside of the presence of the defendants. There, midtrial, a juror informed the trial judge of a possible conflict that might reflect on the juror's ability to be impartial. The judge consulted the parties about whether they wanted her to speak with the juror alone in chambers. Counsel for one codefendant and the prosecutor consented; the other attorneys did not object. The cireuit court held the right to be present had been waived.

Alaska case law prohibits ex parte communication between the judge and jury about evidence once deliberations have begun. Additionally, it is error for a judge to receive the verdict outside the presence of the defendant (even if counsel is present). However, this court has held it was not error for a trial judge who received a note from a juror during trial regarding evidence to inform the parties of its existence and refuse to disclose the contents of the note when he did not respond to the juror's question but generally instructed the jury he would not answer questions.

In Peckham v. State, without reaching the issue of waiver, this court held any error the trial judge committed by questioning two jurors outside Peckham's presence regarding possible juror misconduct was harmless beyond a reasonable doubt. A juror brought to the court's attention information regarding the possible inappropriate conduct of another juror. The trial judge informed the parties of the juror's information and gave them the opportunity to voir dire the relevant jurors. Fearing the jurors might feel threatened by the interview and become prejudiced against one side or the other, the parties asked the judge to question the juror in camera. In finding that any error was harmless beyond a reasonable doubt, this court relied on the fact that Peckham did not demonstrate his personal presence would have added anything to the voir dire of the jurors or protected him from any prejudice and that the trial judge was unlikely to have granted a motion for mistrial had the defendant requested it. This court also noted that Peckham's counsel was informed of and approved the court's ex parte voir dire of the jurors and the communication did not involve a deliberating juror (both questioned jurors were exeused as alternates).

Frankly, the issue Pease and Roberts raise is a difficult one. The state's argument would be considerably stronger if Judge Esch had addressed the parties and obtained a specific waiver of their right to be present before he questioned the juror. Once Judge Esch informed the parties that the proceedings had not been recorded successfully, it is understandable that the parties would take him at his word and would not attempt to review the record during trial. And, once the record surfaced following the trial, it is perhaps not surprising that Judge Eseh's summary of what the juror told him was not entirely accurate. Judge Esch did not relay to counsel that the juror had mentioned Ms. Bodwell's behavior in addition to Mr. Mad-son's. Moreover, the juror never specifically said that he would not hold Madson's behavior against his client. Instead, this apparently was an impression that Judge Esch received from the juror.

After carefully reviewing the record, we conclude that the defendants waived any objection to the procedure Judge Esch followed. The juror indicated that he wanted to talk to Judge Esch in private. It appears that the attorneys, with their clients present, made a tactical decision to allow the juror to have a private meeting with the judge. There was certainly a risk that the juror might feel alienated if he was not allowed to have a private meeting. Also, the juror might be less candid about his concerns in a more formal proceeding rather than in a private meeting with the judge.

After Judge Esch met with the juror, he explained the juror's general concern: that he had been bothered by Madson's behavior. The judge gave two specific examples. He told the attorneys that his attempt to record the proceeding had been unsuccessful, In spite of this information, the attorneys did not ask Judge Esch to take any further action. They had numerous possibilities. They could have asked the judge to conduct a proceeding where they could have been present. Or, the attorneys could have asked Judge Esch to reinterview the juror outside their presence to reconstruct the record for subsequent review. Another possibility was to ask him to either disqualify the juror immediately or wait until the end of the case and, if there were sufficient alternate jurors, excuse the juror at that time. They also could have moved for a mistrial.

But instead of taking these actions, the parties went forward with the trial and obtained a verdict. Having obtained an unfavorable verdict, they now argue that they were prejudiced. The fact remains that it appears the trial court had many options to obviate any prejudice had the parties asked for relief during the trial. Where a defendant chooses not to move to cure possible prejudice when the judge has the opportunity to cure the prejudice, gambling on a favorable verdict, this court and the Alaska Supreme Court have held that the claim is waived. We conclude that Pease and Roberts waived any objection to the procedure Judge Esch followed in questioning the juror.

Whether Roberts's case should be reversed because Judge Esch permitted John Heffle to testify to an admission made by Pease

The United States and Alaska Constitutions guarantee defendants the right to confrontation, including the right to cross-examine witnesses against them, in all criminal matters. In Bruton v. United States, the Supreme Court held

that a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant.

In Richardson v. Marsh, the Supreme Court limited its Bruton holding to situations where the nontestifying codefendant's confession directly implicates the defendant. The Court noted:

In Bruton, the codefendant's confession "expressly implicat[ed]" the defendant as his accomplice. Thus, at the time that confession was introduced there was not the slightest doubt that it would prove "powerfully incriminating." By contrast, in this case the confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial (the defendant's own testimony).
Where the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence.

The Marsh dissent disagreed with the majority's assertion that the jury's ability to abide by an instruction depends on whether the defendant is named in the confession. The dissent relied on the premise that "certain kinds of hearsay 'are at once so damaging, so suspect, and yet so difficult to discount, that jurors cannot be trusted to give such evidence the minimal weight it logically deserves, whatever instructions the trial judge might give'" The dissent urged continued application of Bruton's "powerfully incriminating" analysis whenever the state presents codefendant hearsay confessions in a joint trial where the codefendant does not testify.

Marsh set forth three alternatives for dealing with a codefendant's confession that implicates a defendant and is otherwise inadmissible against the defendant. First, the state can choose to try the two defendants separately. Second, the state can choose not to introduce the confession. Or, third, the state can alter the confession so it only implicates the codefendant and does not directly implicate the defendant and ask the court to give a limiting instruction.

This court reviewed Marsh in State v. McDonald. Because it found McDonald's confrontation clause argument unpersuasive under both views, this court declined to determine if the Marsh majority or dissent applies as a matter of constitutional law in Alaska. In the present case, Roberts asks this court to adopt the view set forth in the Marsh dissent.

During trial, the state moved to admit a statement Pease made to John Heffle. According to Heffle's testimony, Heffle and Pease became friends while they were housed in the same dorm (along with the other codefendants) at the Fairbanks Corree-tional Center. Heffle contacted Fairbanks Police Detective Jim Geier to tell him Pease had made an incriminating statement about the murder of J.H. According to the state,

Heffle ... felt Pease trusted him because he always gave Pease cigarettes. [Heffle] . stated that one day they were smoking some marijuana that had been brought into the jail and were talking about what it would be like to serve a 99 year sentence. Heffle asked Pease if he really did it. Pease responded, "we were fucked up. It was bad." Detective Geiler asked Heffle if they were talking about the murder that Pease was in jail for and Pease [sic] said "yes." Heffle said that he knew ... [the murder] was what they were referring to and that Pease did too. After Pease made the statement, Heffle said Pease walked away and became very quiet.

The state argued Pease's statement was admissible against Pease but recognized that this testimony was not admissible against Roberts because it would violate Roberts's Sixth Amendment right to confront the witness who testified against him. The state suggested several options for admitting the statement without violating Roberts's Sixth Amendment rights. The state argued Roberts's rights would not be violated if the defendants' trials were severed or if the statement "we were fucked up" was paraphrased to "I (Pease) was fucked up" or "he (Pease) was fucked up." The state suggested that the better option was to paraphrase the statement and give a limiting instruction to assure the jury would not improperly use Pease's statement to implicate Roberts. The state argued that with the statement modified and the jury so instructed, the statement would not be "powerfully incriminating" of Roberts and the court would not have to sever the defendants' cases for trial. The state pointed out that Roberts had waived his Sixth Amendment rights to another incriminating statement made by Pease (Angela Harman's statement that Pease admitted that he attacked J.H. "for the punk's money") and that this statement to Heffle was less incriminating than that one.

Roberts argued the Heffle statement was inadmissible under the reasoning of the Marsh dissent. Roberts did not move for severance. Judge Esch followed the reasoning of the majority decision in Marsh. He allowed the state to introduce Heffle's redacted statement and instructed the jury not to use the statement against Roberts.

At trial, Heffle testified for the state. After establishing that Heffle and Pease were friends in jail, the state questioned Heffle as follows:

State: Do you remember one day having a pretty heavy conversation with [Pease]?
Heffle: Well, I don't-yeah. Yes.
State: And did you know what Mr. Pease was in custody for?
Heffle: Yes.
State: And you knew ...
Heffle: Accused of ...
State: ... that was murder charges, right?
Heffle: Yes.
State: And during this kind of heavy conversation, did you ask him if he did it?
Heffle: Yes.
State: Do you recall what he said?
Heffle: He didn't say yes, but he-he said, "I was fucked up and it was bad," and he walked away.
State: Okay.
Heffle: So I don't know how you take that.
State: When he walked away, how did he walk away, what did he do?
Heffle: Just walked away quietly, sat down, and watched TV or something. I can't remember exactly. I think he went and looked at TV.
State: Did that end the conversation?
Heffle: Yes.

After Heffle testified, Judge Esch instructed the jury:

Ladies and gentlemen, I'd like to instruct you that you heard ... a statement allegedly made by one of the defendants. You need to understand that you may consider that evidence against that defendant only and not as ... evidence against Mr. Roberts. So you're entitled to consider that as evidence against ... the defendant who allegedly made the statement.

Roberts argues this court should adopt the position of the Richardson v. Marsh dissent, which calls for a case-by-case analysis to determine whether a particular codefendant confession is "powerfully incriminating" regardless of whether the defendant is actually named by his codefendant in the out-of-court confession. Roberts argues that Heffle's testimony was "powerfully incriminating" because even though in its redacted form it only directly implicated Pease, the state's theory was (and other evidence at trial indicated) the four codefendants assaulted J.H. together. Therefore, if the jury concluded Pease murdered J.H., it would require the jury to also conclude that Roberts was involved.

An appellant who contends that this court should construe the Alaska Constitution to grant defendants more rights than they have under analogous provisions of the United States Constitution bears a substantial burden. Roberts has not met that burden. We recognize the force of the dissenting position in Richardson v. Marsh: In some cases a codefendant's confession could be so "powerfully incriminating" that even if the statement were redacted to exclude any reference to the defendant, it would be unreasonable to conclude that the jury would be able to follow the court's instruction to disregard the statement as to the defendant. But the facts of Roberts's case are not particularly compelling. In the first place, Roberts never moved to sever his trial from Pease's. Furthermore, pursuant to a Bruton waiver by Roberts, the state introduced another in-culpatory statement by Pease. Angela Har-man testified that while in jail she asked Pease why he had done it, referring to J.H.'s murder, and Pease told her he did it for the punk's money. Therefore, it does not appear that Roberts was particularly concerned about witnesses from the jail testifying that Pease made inculpatory statements. The in-culpatory statement, as redacted by the court, referred only to Pease, and the court gave the jury a cautionary instruction. Although there was substantial evidence that Pease and Roberts were together during the incident, Roberts's defense was that at the time in question, he was not with Pease but was at the wedding reception at the Eagles Hall. If the jury believed Roberts's defense, Pease's statement only implicated Pease and not Roberts. We conclude that Roberts has not established a substantial basis for departing from the majority decision in Richardson v. Marsh. We conclude that Judge Esch did not err in admitting Pease's hearsay statement.

Whether Judge Esch erred in allowing the prosecutor to argue that codefendants Vent and Frese stated Roberts was not at the Eagles Hall but in the car

Roberts's attorney eross-examined Fairbanks Police Detective Aaron Ring about Ring's investigation of Roberts's location at 1:30 am. Roberts's attorney asked Detective Ring whether he was concerned that witnesses reported Roberts dancing at the Eagles Hall at around 1:80 a.m. when the state's theory was that Roberts was with his code-fendants at that time. Detective Ring replied that, although some people had stated that Roberts was at the Eagles Hall at 1:30, "other people have him doing other things." Roberts's attorney asked Ring who had Roberts "doing other things."

Roberts: Like Mr. Arlo Olson?
Det. Ring: And-and others.
Roberts: Right? Huh?
Det. Ring: And others.
Roberts: Who others? Just give me a name.
Det. Ring: Mr. Vent.
Roberts: Uh-huh.
Det. Ring: Mr. Frese.
Roberts: Uh-huh.
Det. Ring: I can't recall with specificity the other witnesses. Edgar Henry.

The parties presented no more evidence regarding statements by Vent or Frese.

Prior to closing arguments, Pease and Roberts applied for a protective order to prevent the state from implying that Vent or Frese had made admissions or confessions. The state argued that Roberts had "opened the door" by asking Detective Ring about the identity of the other witnesses who stated Roberts was in the car and not at the Eagles Hall. Based on Roberts's questioning of Detective Ring, the court allowed the state to argue that Vent and Frese had given information that Roberts was in the car.

During final arguments, the state argued:

Then, Mr. Madson asked Detective Ring whether he's concerned about the time factor where Melanie Durbham says, you know, it's after the Bowie show, and it's 1:30 or so, and you got all these other witnesses saying well, [Roberts's] someplace else dancing. And he asks Detective Ring about well, who else could put him anywhere.

The state then played a recording of the trial cross-examination of Detective Ring. During its rebuttal closing, the state said, "Again, Mr. Madson asked Mr. Ring, 'well, who puts [Roberts] in the car': 'Arlo, Edgar [Henry], Vent, and Frese!"

Without citing legal authority, Pease and Roberts contend that the state argued an impermissible inference when the state argued that Vent and Frese stated Roberts was in the car. The defendants argue it is pure speculation to conclude from Detective Ring's testimony that all of the defendants were in the car together at the time of the assaults. They contend the jury could make this speculative conclusion based on the state's argument; that this conclusion is factually and legally incorrect; and, therefore, the state's argument was erroneous.

The evidence at trial tended to show that Roberts was either at the Eagles Hall at the time of the assaults or that he was in the car with his codefendants. A reasonable inference from Detective Ring's remarks was that Frese and Vent placed Roberts in the car at 1:30 am. Assuming Vent and Frese told Detective Ring that Roberts was in the car at 1:30 a.m., the state's comment was not fundamentally misleading.

Pease and Roberts claim that this inference was "factually and legally incorrect." But they have not provided us with Detective Ring's interviews of Frese and Vent or provided any other basis suggesting that the inference the prosecution made from Detective Ring's testimony was misleading. Under these circumstances, we conclude that Judge Esch did not err in refusing to curtail the state's argument.

Whether Judge Esch erred in admitting Exhibit D

Exhibit D consists of a photo of the injuries on one side of J.H.'s face overlaid with inked impressions of Frese's shoe print on see-through plastic. Fairbanks Police Lieutenant David Kendrick, Detectives Brown and Ring, and the prosecutor, Jeffrey O'Bryant, prepared the exhibit.

Dr. Fallico, the pathologist who performed the autopsy on J.H., testified that the injuries on J.H.'s face were consistent with the tread pattern on Frese's shoe. He based his opinion on his notes-notes he had made from the exhibit while using it in a prior proceeding, autopsy information, other photos, and investigative information. Pease introduced Exhibit D during his cross-examination of Dr. Fallico. Both defendants cross-examined Dr. Fallico extensively on his qualifications to make footwear impression identification.

Pease's expert witness, Dr. John Thornton, disagreed with Dr. Fallico's opinion that the marks on J.H. matched the footwear pattern. He commented it was misleading to merely compare the tread design from the shoe to the injuries on J.H.'s face without considering the depth of the tread. Dr. Thornton testified that he and others in his laboratory had compared the marks on J.H.'s face with the shoes police seized, and no one concluded that the marks on J.H.'s face were consistent with the tread design on the shoes.

At the close of trial, the state moved to admit Exhibit D. Pease objected to its admission. Pease argued that Dr. Fallico did not create the overlay; the state did. He complained that he could not call the state's attorney to question him about the construction of the exhibit. Pease argued that although the overlay was the basis of Dr. Fallico's opinion, Dr. Fallico did not testify from it. Therefore, he concluded, it should not be admissible. Judge Esch admitted the overlay. He stated that Dr. Fallico had used the exhibit to form his opinion and that there had been extensive testimony about it during the trial.

Pease and Roberts raise numerous arguments about why Judge Esch erred in admitting Exhibit D. But Pease used Exhibit D during his cross-examination of Dr. Falli-co. And Pease presented an expert witness, Dr. John Thornton, who testified extensively about why Exhibit D gave an inaccurate impression. Given the extensive testimony about Exhibit D and the jury's exposure to it, we fail to see how admission of this evidence would have mislead the jury or would have had an appreciable impact on the jury's verdict. Therefore, we conclude that Judge Esch did not err in admitting Exhibit D. Furthermore, to the extent that there was any error in admitting Exhibit D, that error was harmless.

Defendants' motions for judgment of acquittal and motions for a new trial

Pease and Roberts contend that Judge Esch erred in denying their motions for judgment of acquittal. In reviewing a judge's denial of a motion for judgment of acquittal, this court considers only those facts in the record most favorable to the state and such reasonable inferences as the jury could have drawn from them. "The question on review is ... 'whether the finding of guilt is supported by substantial evidence[;]' " that is, "whether reasonable jurors could differ on the issue of guilt." Our review of the record convinces us that reasonable jurors could have convicted Pease and Roberts of the charges in question.

The standard for a motion for a new trial is different. On this issue, the trial court was authorized to weigh the evidence and determine the credibility of the witnesses. The decision of whether to grant a motion for a new trial under Alaska Criminal Rule 33 is committed to the discretion of the trial court. This court is to reverse the trial judge's decision on this issue "only if it is unsupported by evidence or was based on an incorrect application of the law." Especially when the credibility of witnesses is at issue, this court "must give broad deference to the trial judge's ability to observe the demeanor of witnesses, to form firsthand impressions of their credibility, and to decide the weight that should be given to their testimony."

We have reviewed Judge Eseh's findings denying the motion for a new trial We conclude that Judge Esch did not abuse his discretion.

Restitution

The state requested $18,696.66 in restitution to be paid to Evelyn Thomas, J.H.'s mother. The state submitted copies of seven bills and statements from Thomas in support of its request and an explanation of those charges. On May 30, 2000, Judge Esch held a restitution hearing. The state itemized its $18,696.66 reimbursement request. And, Thomas testified regarding the itemized requests for reimbursement. At the conclusion of the hearing, Judge Esch ordered $1,774 to be paid for J.H.'s funeral and miscellaneous expenses. He also ordered $16,842.66 to be paid to the Violent Crimes Compensation Commission (Commission).

Roberts and Pease argue Thomas's testimony that the Commission paid particular bills is insufficient to establish what medical bills the Commission paid. Based on this argument, they contend this court should find Judge Esch erred in ordering restitution to be paid to the Commission.

The state argues the evidence on the ree-ord viewed in the light most favorable to the state shows the Commission paid $16,442.66. The state concedes that the order of $16,842.66 is incorrect.

The state's concession of unexplained error appears to be well-founded. The testimony indicated that the Commission paid the following expenses:

1) $2237 to the Fairbanks Clinic
2) $850 ($600 & $250) to the Fairbanks Psychiatric and Neurological Clinic
3) $62 to ANHC
4) $2643.79 to FMH for the neurologic brain surgeon
5) $10,206.87 to FMH
6) $448 to Radiology Consultants
Total: $16,442.66

The state therefore asks us to remand the restitution issue to Judge Esch for redetermination. We conclude that this matter should be remanded to the superior court to reconsider restitution in light of the state's concession. Because the restitution issue is being remanded, on remand, the parties will have the opportunity to reexamine the evidence in support of restitution.

Conclusion

Having reviewed the defendants' claims of error, we AFFIRM the convictions. We REMAND the restitution issue to the trial court for reconsideration.

      . See Frese v. State, Court of Appeals File No. A-7640; Vent v. State, Court of Appeals File No. A-7647.

      . See, e.g., State v. Carriker, 269 S.C. 553, 238 S.E.2d 678 (1977); People v. Lopez, 158 A.D.2d 623, 623, 551 N.Y.S.2d 606 (N.Y.App.Div.1990) ("The objections made by the codefendants did not preserve the allegations of error for this defendant."); Martinez v. State, 833 S.W.2d 188, 191 (Tex.App.1992) (defendant may not rely on the objection of his codefendant to preserve error unless defendant has adopted the objection on the record); see also Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 556 (Tex.App.1996) (defendant in multi-defendant products liability action could rely on evidentiary objections made by codefendants' counsel where trial court apparently required and defendants agreed that objection made by one defendant would be considered as having been made on behalf of all defendants and plaintiffs did not object to such arrangement).

      . 778 P.2d 1161 (Alaska App.1989).

      . Id. at 1167 n. 2.

      . See Petersen v. State, 838 P.2d 812, 816 (Alaska App.1992).

      . See Ashley v. State, 6 P.3d 738, 741 (Alaska App.2000); Alaska R.Crim. P. 8; Alaska R.Crim. P. 14.

      . See Ashley, 6 P.3d at 741; Alaska R.Crim. P. 8.

      . See Ashley, 6 P.3d at 741; Alaska R.Crim. P. 14.

      . See Catlett v. State, 585 P.2d 553, 556 (Alaska 1978); Cleveland v. State, 538 P.2d 1006, 1008-09 (Alaska 1975).

      . See Mathis v. State, 778 P.2d 1161, 1167 (Alaska App.1989).

      . 950 P.2d 141 (Alaska App.1997).

      . Id. at 147.

      . Id.

      . 697 P.2d 312 (Alaska App.1985), affirmed on appeal, 726 P.2d 546 (Alaska 1986).

      . Hoffman, 950 P.2d at 147 (quoting Lerchenstein, 697 P.2d at 319).

      . 778 P.2d 593 (Alaska App.1989).

      . Id. at 596-97.

      . 756 P.2d 907 (Alaska App.1988), overruled on other grounds by Swain v. State, 817 P.2d 927, 931-34 (Alaska App.1991).

      . Id. at 911.

      . See also Vessell v. State, 624 P.2d 275, 278 (Alaska 1981) (defendant's conduct at a store minutes after the armed robbery of another store for which he was accused was admissible to show that he was the same man who robbed the first store); Kelly v. State, 663 P.2d 967, 972 (Alaska App.1983) (bad checks written by defendant near time he wrote the bad check for which he was prosecuted were admissible to prove intent and absence of mistake); Davidson v. State, 642 P.2d 1383, 1390 n. 8 (Alaska App.1982) (upholding trial court's refusal to sever charge based on an assault occurring six days before other charged murder because defendant's actions could be viewed as a continuing course of conduct and since the assault charge would have been admissible in the murder trial to prove criminal intent or motive or to show a common scheme or plan even if the charges had been severed).

      . ARE. 403.

      . See Alaska R.Crim. P. 38(a); Faretta v. California, 422 U.S. 806, 820 n. 15, 95 S.Ct. 2525, 2533 n. 15, 45 L.Ed.2d 562 (1975) (A defendant has a constitutional "right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.").

      . See U.S. Const. amends. VI, XIV; Alaska Const. art. 1, §§ 1, 7; Dixon v. State, 605 P.2d 882, 884 n. 3 (Alaska 1980); Henry v. State, 861 P.2d 582, 592 (Alaska App.1993).

      . United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985).

      . Malloy v. State, 1 P.3d 1266, 1271 (Alaska App.2000), overruled on other grounds, 46 P.3d 949 (Alaska 2002) (citations omitted).

      . See Dixon, 605 P.2d at 885 n. 8 ("[The constitution[ ] mandate{s] that the right [to be present] be personally exercised by the defendant or with his express consent.").

      . See Gagnon, 470 U.S. at 526, 105 S.Ct. at 1484; Alaska R.Crim. P. 38.

      . Gagnon, 470 U.S. at 526, 105 S.Ct. at 1484 (quoting Rushen v. Spain, 464 U.S. 114, 125-26, 104 S.Ct. 453, 459, 78 L.Ed.2d 267 (1983) (Stevens, J., concurring)).

      . 62 F.3d 1180 (9th Cir.1995).

      . Id. at 1190-91.

      . Id.

      . Id. at 1190.

      . See Cox v. State, 575 P.2d 297, 300 (Alaska 1978) (holding judge's ex parte communication through bailiff regarding jury's playback request was constitutional error); Richardson v. State, 579 P.2d at 1372, 1374 (Alaska 1978) (playback of testimony without presence of parties or judge and without notifying parties was error); State v. Hannagan, 559 P.2d 1059, 1065 (Alaska 1977) (error to permit playback of testimony in defendant's absence without express waiver by defendant).

      . See Lee v. State, 509 P.2d 1088, 1090-91 (Alaska 1973) (decided under Alaska R.Crim. P. 38).

      . See Brodine v. State, 936 P.2d 545, 552-53 (Alaska App.1997).

      . 723 P.2d 638 (Alaska App.1986).

      . Id. at 640.

      . Id. at 638.

      . Id. at 638-39.

      . Id. at 640.

      . Id. at 641.

      . See Owens v. State, 613 P.2d 259, 263 (Alaska 1980); Davidson v. State, 642 P.2d 1383, 1386-89 (Alaska App.1982).

      . See U.S. Const. amends. VI & XIV; Alaska Const. art. I, § 11; Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 1623, 20 L.Ed.2d 476 (1968); Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 1707, 95 L.Ed.2d 176 (1987); Hawley v. State, 614 P.2d 1349, 1358 (Alaska 1980).

      . 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

      . Marsh, 481 U.S. at 207, 107 S.Ct. at 1707 (citing Bruton, 391 U.S. at 126, 88 S.Ct. at 1622).

      . 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987).

      . Marsh, 481 U.S. at 211, 107 S.Ct. at 1709.

      . Id. at 208, 107 S.Ct. at 1707-08 (citations and footnotes omitted).

      . Id. at 212, 107 S.Ct. at 1710 (Stevens, J., dissenting) (citations and footnotes omitted).

      . Id. at 214, 107 S.Ct. at 1711 (Stevens, J., dissenting) ("Bruton has always required trial judges to answer the question whether a particular confession is or is not 'powerfully incriminating' on a case-by-case basis; they should follow the same analysis whether or not the defendant is actually named by his or her codefendant.").

      . Id. at 209, 107 S.Ct. at 1708.

      . Id. at 210, 107 S.Ct. at 1709.

      . Id. at 211, 107 S.Ct. at 1709.

      . 872 P.2d 627 (Alaska App.1994).

      . Id. at 647.

      . See Bruton, 391 U.S. at 126, 88 S.Ct. at 1623.

      . See Hosier v. State, 976 P.2d 869, 870 (Alaska App.1999).

      . See Patterson v. State, 747 P.2d 535, 538-41 (Alaska App.1987).

      . See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).

      . Id.

      . New v. State, 714 P.2d 378, 381 (Alaska App.1986).

      . Id. at 381-82.

      . Maloney v. State, 667 P.2d 1258, 1267 (Alaska App.1983).

      . New, 714 P.2d at 381-82.

      . Maloney, 667 P.2d at 1267.

      . See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972). A concession of error by the state is not determinative of the issue because "[the public interest in criminal appeals does not permit their disposition by party stipulation." Id. When the state concedes error, this court must independently review the record to ensure that the alleged error exists and that it has a legal foundation.


author: MANNHEIMER, Judge. COATS, Chief Judge,

text:
    Frederick Wilbur MORGAN, III, Appellant, v. STATE of Alaska, Appellee.
    No. A-7700.
    Court of Appeals of Alaska.
    Sept. 27, 2002.

      Michael D. Dieni, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Kim S. Stone, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

The defendant in this case was being tried for sexual assault. He asked the trial judge to allow him to introduce the testimony of several witnesses who purportedly were prepared to say that the complaining witness (the alleged victim) had twice previously made false accusations of sexual assault against other men. In Covington v. State, 703 P.2d 486, 441-42 (Alaska App.1985), we held that this type of evidence is admissible if, as a foundational matter, the defendant establishes the falsity of the prior accusations-"as, for example, where the charges somehow had been disproved or where the witness had conceded their falsity".

In this appeal, we are asked to clarify our holding in Covington. What exactly must a defendant prove when seeking to establish that an alleged sexual assault victim has made a prior false accusation of rape? And what is the burden of proof on this issue?

For the reasons explained here, we conclude that a defendant must convince the trial judge by a preponderance of the evidence (1) that the complaining witness made another accusation of sexual assault, (2) that this accusation was factually untrue, and (8) that the complaining witness knew that the accusation was untrue. The defendant can prove these elements through voir dire examination of the complaining witness or through presentation of extrinsic evidence-i.e., documentary evidence or the testimony of witnesses having knowledge of the prior accusation.

The defendant must present this foundational evidence to the trial judge outside the presence of the jury. If the trial judge concludes that, more likely than not, the complaining witness made a knowingly false accusation of sexual assault on another occasion, then the defendant will be permitted to present this evidence to the jury.

Underlying facts: Morgan's offer of proof and the trial judge's ruling

Frederick Wilbur Morgan, Jr., was charged with engaging in sexual penetration with TF. while she was so intoxicated as to be incapacitated or unaware that a sexual act was occurring. Morgan defended this charge by asserting that T.F. had been fully aware of the sexual intercourse and had consented to it. In other words, he argued that TF. was falsely accusing him of sexual assault.

In support of this defense, Morgan asked the trial judge to allow him to present the testimony of four witnesses who (according to Morgan's offer of proof) were prepared to say that T.F. had accused men of sexually assaulting her on two previous occasions, only to later concede that these accusations were false. The trial judge, Superior Court Judge Thomas M. Jahnke, ruled that Morgan's proposed evidence was barred by Cov-ington.

As explained above, Covington states that this type of impeaching evidence is admissible only if "the charges somehow halve] been disproved or where the witness has] conceded their falsity". Judge Jahnke interpreted this passage to mean that it was not enough for a defendant to present witnesses who would testify to the falsity of the prior accusations or who would testify that the complaining witness had recanted those accusations. Rather, Judge Jahnke concluded that Covington required Morgan to show either (1) that TF. had "made [an] official concession that the charges were false by, for example, testifying under oath ... that they were false or conceding their falsity in a deposition or [in an] answer to an interrogatory"; or (2) that T.F.'s prior accusations "hald] been adjudicated false by a court or other neutral tribunal". (emphasis in Judge Jahnke's written order).

Based on this interpretation of Covington, Judge Jahnke refused to hear the testimony of Morgan's witnesses concerning T.F.'s alleged prior accusations of sexual assault. (The judge noted, however, that Morgan was still free to have these same witnesses present their opinion of T.F.'s character for honesty, so long as they did not go into specifics. See Alaska Evidence Rules 404(a)(8), 405, and 608.)

Later, at trial, Judge Jahnke allowed Morgan's attorney to conduct what was essentially a voir dire examination of T.F. to see if she would concede (1) that she had previously accused the two other men of sexual assault and (2) that those prior accusations were false. But T.F. denied accusing these other men of sexual assault. In light of these answers, and given Judge Jahnke's earlier ruling, Morgan's attorney let the matter drop.

The questions left unanswered by our decision in Covington

In Covington, the defendant argued that he should have been allowed to present evidence suggesting that the complaining witness had falsely accused two other men of sexual abuse. The complaining witness agreed that she had accused the two men of abusing her, but she asserted that the accusations were true. Covington wanted to call one of the two men to the stand and have him deny the truth of the accusations.

This Court noted that "[a] majority of the courts which have considered [this] issue permit such evidencel, but] only if the defendant makes a showing out of the presence of the jury that the witness'[s] prior allegations of sexual assault were false". We then declared that we would "adopt this rule for Alaska".

The problem is that, even though a majority of states allow a defendant to raise the issue of a complaining witness's prior false accusations under certain circumstances, there is no "majority rule" concerning this evidence. Our sibling states rely on several different theories to justify allowing a defendant to inquire or present evidence concerning the complaining witness's prior accusations-and the scope of the permitted inquiry varies from state to state, depending on that state's legal rationale for allowing the inquiry.

(a) Cam a defendant introduce extrinsic evidence of a complaining witness's prior false accusations?

The court decisions in this area focus on two potential legal impediments to a defendant's right to introduce evidence of prior false accusations. The first impediment is the rule embodied in Alaska Evidence Rules 405 and 608: the prohibition against attacking a witness's character for honesty by presenting proof of specific instances in which the witness has acted dishonestly. The see-ond impediment is the rule that a party is not allowed to introduce extrinsic evidence to impeach a witness's answers on cross-examination regarding collateral matters (such as the witness's possible acts of dishonesty on other occasions).

Adhering to these rules, the courts of New Mexico and Maryland allow a defendant to cross-examine the complaining witness about potentially false prior accusations, but these states bar the defendant from presenting extrinsic evidence to rebut or impeach the complaining witness's answers. Massachusetts appears to follow this same rule. Moreover, Massachusetts restricts the defendant's right of cross-examination to cases in which the complaining witness's testimony is confused or improbable, there is no corroboration, and the defendant produces evidence of a series or pattern of false accusations of the same type of sexual misconduct.

Other courts have answered these potential objections by holding that, when a defendant is on trial for sexual assault, the complaining witness's prior false complaints of sexual assault constitute a special kind of prior falsehood that has particular relevance above and beyond the fact that it may indicate the witness's general character for dishonesty. In these states, a defendant may both cross-examine the complaining witness and present extrinsic evidence of prior false accusations if the complaining witness denies having made them.

This result appears to be consistent with the common-law doctrine that a party could present evidence of a witness's "corruption"-a term that encompassed evidence of (1) the witness's general willingness to lie under oath, (2) the witness's offer to give false testimony for money or other reward, (8) the witness's acknowledgement of having lied under oath on prior occasions, (4) the witness's attempt to bribe another witness, or (5) the witness's pattern of presenting false legal claims. Dean Wigmore concedes that the precise theoretical foundation of this sort of impeachment is "not easy to determine" because, he says, the impeachment "is related in one aspect to interest, in another to bias, in still another to character (%4e., involving a lack of moral integrity)". Despite this ambiguity, Wigmore concludes that "the essential discrediting element" of the impeachment was its relevance to proving the witness's willingness to corrupt the legal process-the witness's "willingness to obstruct the discovery of the truth by manufacturing or suppressing testimony".

But the common-law rules of evidence have been superseded in most American jurisdictions by evidence codes modeled after the Federal Rules of Evidence, and not all courts believe that the common-law doctrine of impeachment for "corruption" has survived the enactment of these evidence codes. For example, the Texas Court of Criminal Appeals concluded that the practice of allowing a complaining witness to be impeached by evidence of prior false accusations "cannot easily be squared with the dictates of [Evidence] Rule 608(b)"-the rule that prohibits a party from attacking a witness's character for honesty by presenting evidence of specific instances in which the witness has acted dishonestly.

Nevertheless, even these courts allow sexual assault defendants to delve into a complaining witness's prior false accusations when the cireumstances are particularly compelling. Thus, the Texas court, the Oregon Supreme Court, and the Kansas Court of Appeals have concluded that, despite the prohibition contained in their counterparts to Evidence Rule 608, the confrontation clause of the Constitution requires this kind of impeachment if the evidence of the complaining witness's fabrication is strong enough.

We believe that this confrontation-clause rationale is, at its core, simply a restatement of the principle that, in sexual assault prosecutions, a complaining witness's prior false accusation of sexual assault can indeed have a special relevance-a relevance that removes this evidence from the normal ban on attacking a witness's general character for honesty through the use of specific instances of dishonesty. Thus, the confrontation-clause states effectively reach the same conclusion as the states which interpret their evidence rules to allow this type of impeachment: when there is strong evidence that the complaining witness has falsely accused others of sexual assault, this evidence is admissible.

We therefore clarify our decision in Covington: if the defendant proves that a complaining witness has made prior false accusations of sexual assault (under the rules explained in the next section of this opinion), the defendant is not limited to cross-examining the complaining witness concerning these prior accusations. Rather, the defendant can both cross-examine the complaining witness and present extrinsic evidence on this point.

(b) What is the defendant's foundational burden of proof?

This brings us to the question: how does a defendant prove that a complaining witness has made false accusations of sexual assault? Again, there is no "majority rule" on this issue, even among the states that allow defendants to present extrinsic evidence of a complaining witness's false accusations.

Louisiana and Wisconsin have perhaps the most wide-open rule. The Louisiana Supreme Court has declared that this issue is governed by Louisiana's counterpart to Alaska Evidence Rule 104(b). Thus, a Louisiana court will allow a defendant to introduce evidence tending to show that a complaining witness has made prior false accusations if the defendant merely offers "evidence sufficient to support [this] finding"-evidence from which a jury might reasonably conclude that the complaining witness had made a false accusation. The Wisconsin Supreme Court has reached this same conclusion.

The Oregon rule of admissibility is somewhat stricter, but again judges are instructed not to resolve the disputed issue themselves. Rather, they are to let the defendant litigate the issue to the jury if there is "substantial evidence" that the prior accusation was false, and if the probative value of this evidence is not outweighed by the risk of unfair prejudice created by litigating this issue.

In contrast to Louisiana, Wisconsin, and Oregon, other states require their trial judges to be more active "gate-keepers". In these states, the impeaching evidence is admissible only if the defendant first convinces the trial judge-sitting as a preliminary finder of fact-that (1) the complaining witness made another complaint of sexual assault, (2) this complaint was untrue, and (8) the complaining witness knew that the complaint was untrue.

The courts use various phrases to describe the requisite showing of falsity; indeed, you will find different wording even among decisions from the same jurisdiction. Some courts require proof of "actual falsity" or a "reasonable probability of falsity" ; other courts require proof that the accusation is "demonstrably false" or "convincingly false"

But despite these variations, all of these courts subscribe to the same underlying principle: It is not sufficient for the defendant to show that the prior accusation is "arguably false" or that the matter is reasonably debatable. Rather, the defendant will not be allowed to present this matter to the jury unless the defendant first convinces the trial judge that the complaining witness has knowingly made a false complaint of sexual assault. This is the approach we adopted in Covington, and we reaffirm it here.

But what exactly must a defendant prove to establish the falsity of the complaining witness's prior accusation? In Covington, we stated that it was the defendant's burden to prove "that the witness'[s] prior allegations of sexual assault were false, as, for example, where the charges somehow had been disproved or where the witness had conceded their falsity". The trial judge in the present case interpreted this language to mean that there are only two methods of proof available to a defendant, and both of these methods require formal litigation. The judge ruled that the Covington test could be met only by proof that the complaining witness has conceded, under oath, that the accusation was false, or by proof that a court has formally adjudicated the accusation to be false.

We conclude that this is too narrow a reading of Covington. Unless the person named in the prior accusation brought and won a slander suit against the complaining witness, or unless the prior false accusation eventually led to the complaining witness's conviction for perjury, it will be rare that a tribunal will have directly adjudicated the truth or falsity of a prior accusation. If the accusation led to a eriminal prosecution and the defendant was acquitted, this proves only that the jury had a reasonable doubt concerning the truth of the accusation. Indeed, courts from other states have ruled that not even the dismissal of a criminal prosecution at preliminary hearing-1ie., dismissal for lack of probable cause-is sufficient to establish the necessary foundational proof of falsity, since such dismissals can occur for reasons unrelated to the credibility of the complaining witness.

The other suggested method of proof-formal concession, under oath, that the prior accusation was false-leaves a defendant at the merey of the complaining witness's conscience. Even when there is overwhelming evidence that a prior accusation was false, there will be times when the complaining witness will not concede this point. Moreover, even when the complaining witness has recanted under oath, this will not always resolve the true factual question: was the prior accusation actually false?

The distinction between recantation and actual falsity is highlighted in State v. MacDonald, 131 Idaho 867, 956 P.2d 1314 (App.1998). The defendant in MacDonald was charged with rape. He wished to present evidence that when the complaining witness was a teenager, she had accused her adoptive father of sexual abuse but later formally recanted the charge. When the trial judge held a hearing on this matter, the complaining witness admitted that she had recanted the charge against her adoptive father, but she explained that she had done so only because of her family situation, and she declared that the charge had in fact been true.

On this record, the Idaho Court of Appeals upheld the trial judge's decision to exclude evidence of the complaining witness's recantation. The appellate court concluded that the trial judge's decision was a valid exercise of discretion under Evidence Rule 403, since the probative value of the recantation was questionable and was outweighed by the risk of unfair prejudice and confusion of issues. In other words, a complaining witness's recantation is conclusive of the falsity of the prior accusation only when the validity of the recantation is not disputed.

For these reasons, we conclude that the trial judge in the present case did not construe Covington correctly. Covington refers to recantations and prior adjudications as examples of how the falsity of a prior accusation might be proved, but the true issue-the question to be resolved by the trial judge-is whether the prior accusation was actually and knowingly false. We conclude that a defendant is entitled to 'rely on normal evi-dentiary methods-the presentation of witnesses, documents, and physical evidence-to prove this point to the trial judge at the foundational hearing.

One final issue must be resolved: what standard of proof must the defendant meet when presenting the foundational proof that a complaining witness's prior accusation was knowingly false?

We have already rejected the approach taken by Louisiana, Wisconsin, and Oregon-states that require the defendant to prove only that the falsity of the accusation is reasonably debatable. We also agree with other jurisdictions who hold that the alleged perpetrator's denial of the prior accusation is not sufficient, in itself, to establish the falsity of the accusation. Indeed, this was the offer of proof that the defendant made in Covington, and we held that this offer of proof was insufficient, as a matter of law, "[to] establish the falsity of the alleged prior complaints".

This leaves us with a choice between two burdens of proof: proof by a preponderance of the evidence, and proof by clear and convincing evidence.

As the Supreme Court of Hawai'i recently noted, "courts have varied widely with respect to the standard of proof required" to establish the foundational showing of falsity. Based on its own prior decisions involving foundational proof, the Hawai'i court concluded that the proper burden of proof was preponderance of the evidence. Other states use a preponderance standard too.

We acknowledge that some courts require "convincing" evidence of falsity, in order to make sure that juries are not distracted by debatable and possibly collateral informa-tions.

Having considered this matter, we adopt "preponderance of the evidence" as the standard of proof that a defendant must meet when seeking to prove (as a foundational matter under Covington ) that the complaining witness has made a prior knowingly false accusation of sexual assault. If we were to adopt the "some evidence" test used in Louisiana and Wisconsin, a test which merely requires sufficient evidence to put the matter in doubt, then we would be encouraging trials within trials, and we would also throw open the doors to debates about a complaining witness's sexual history based on dubious evidence. We note that "preponderance of the evidence" is the: foundational standard commonly used in Alaska to determine similar questions of admissibility or exclusion. We also note that if we adopted the "clear and convincing evidence" standard, we would require trial judges to exclude evidence of a complaining witness's prior accusations of sexual assault even after the judge had concluded that those prior accusations were probably false. For these reasons, we conclude that "preponderance of the evidence" is the proper standard of proof.

If, based on the defendant's evidence at the foundational hearing, the trial judge concludes that the defendant has demonstrated by a preponderance of the evidence that the complaining witness made a knowingly false accusation of sexual assault on another occasion, then the trial judge shall allow the defendant to present this evidence to the jury. If, on the other hand, the defendant fails to meet this standard of proof-either with respect to whether the complaining witness made the prior accusation, or with respect to whether that accusation was knowingly false-then the defendant's evidence will not be admissible.

(On appeal, an appellate court will not disturb the trial judge's resolution of this question unless the trial judge's finding is clearly erroncous.)

Conclusion

In the present case, the trial judge declined to hear the testimony of Morgan's four witnesses who were purportedly ready to assert that TF. had made knowingly false accusations of sexual assault in the past. This was error. The trial judge should have heard Morgan's witnesses and then decided whether Morgan had shown by a preponderance of the evidence that T.F. had made knowingly false accusations of sexual assault. We therefore remand this case to the superi- or court so that this foundational hearing can be held.

If Morgan proves that T.F. made knowingly false accusations of sexual assault, then the trial judge should re-determine Morgan's guilt in light of this evidence. (Morgan was tried by the court sitting without a jury.) If, however, Morgan fails to meet this burden of proof, then the superior court should affirm Morgan's conviction.

COATS, Chief Judge,

concurring.

This case raises the issue of whether a defendant in a sexual assault case can present evidence that the person who is accusing him of the sexual assault has made a prior false claim of sexual assault.

If a sexual assault victim has previously falsely accused another person of sexually assaulting her, this evidence can be probative to call the current accusation into question. This is why, if the prior false accusation can be proven, it is generally admissible. But in the real world, unless the alleged victim admits the false prior accusation, it is frequently difficult to establish that the alleged victim has previously made a false accusation. We would expect someone who is accused of sexual assault to deny that the sexual assault occurred. Even 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. It does not prove that the defendant was factually innocent or the alleged victim made a false accusation. Therefore, cases such as Covington v. State, place a substantial burden on the defendant who wishes to establish that the alleged victim has made a prior false accusation. The evidence in support of the contention that the alleged victim made a prior false accusation raises the spe¢-ter that the trial court could be faced with trying another sexual assault case within the current sexual assault trial In my view, cases such as Covington reflect the policy embodied in Alaska Evidence Rule 403 (that courts should not admit evidence unless the probative value of the evidence outweighs the danger of unfair prejudice). In many instances, evidence that the victim has previously made a false charge of a sexual assault will be inconclusive and probative value of this evidence will generally be outweighed by the danger of unfair prejudice.

But Morgan's case departs from the general problem courts face when a defendant offers to present evidence that an alleged victim has made a prior false accusation of sexual assault. In this case, the alleged victim, TF., admitted that she had consensual intercourse with R.R. and C.B. She testified that she never accused these two men of sexually assaulting her and admitted that if she reported that RR. and C.B. had sexually assaulted her, those statements would be false. Morgan wanted to present the testimony of four witnesses who would testify that T.F. had made statements that R.R. and C.B. had sexually assaulted her.

According to Morgan's offer of proof, the prior acts of intercourse and the allegedly false charges occurred within a few months of the current charges. So, if T.F. made the false statements, the statements were relatively contemporaneous with her report that Morgan sexually assaulted her.

If TF. falsely accused others of sexual assault within a few months of the current incident, this evidence would be probative in evaluating T.F.'s credibility. And, this case does not raise the difficult problems that occur when an alleged victim claims that she was previously sexually assaulted and the perpetrator denies that the assault occurred. Here, T.F. concedes that she was not sexually assaulted. The only question is whether she made the false accusations.

It is certainly not clear whether T.F. made prior false allegations of- sexual assault. The State argues that Morgan's witnesses were friends of his and that they were lying. But whether Morgan's witnesses were credible or not is the kind of question that fact finders deal with on a regular basis. And, because this case was a bench trial, I fail to see how allowing Morgan to present this evidence could be unduly prejudicial.

Accordingly, I concur that we should remand the case fo Judge Jahnke. On remand, Morgan should be permitted to present his evidence that T.F. had previously made false accusations of sexual assault. Judge Jahnke should then reevaluate the evidence in the case and redetermine his verdict.

      . Covington, 703 P.2d at 442.

      . See id., 703 P.2d at 441-42.

      . Id. at 442.

      . Id.

      . See Worthy v. State, 999 P.2d 771, (Alaska 2000): "As a general rule, contradictory evidence may not be admitted if it relates to a collateral matter. If a matter is considered collateral, the testimony of the witness on direct or cross-examination stands-the examiner must take the witness's answer. If the matter is not collateral, extrinsic evidence may be introduced disputing the witness's testimony on direct or cross-examination."

      . See State v. Scott, 113 N.M. 525, 828 P.2d 958, 963 (App.1991); State v. Cox, 298 Md. 173, 468 A.2d 319, 323-24 (1983).

      . See Commonwealth v. Bohannon, 376 Mass. 90, 378 N.E.2d 987, 991 (1978); Commonwealth v. Barresi, 46 Mass.App.Ct. 907, 705 N.E.2d 639, 641 (1999); Commonwealth v. Nichols, 37 Mass.App.Ct. 332, 639 N.E.2d 1088, 1090 (1994); Commonwealth v. Hicks, 23 Mass.App.Ct. 487, 503 N.E.2d 969, 972 (1987); Commonwealth v. Blair, 21 Mass.App.Ct. 625, 488 N.E.2d 1200, 1202-03 (1986).

      . See, eg., State v. Anderson, 211 Mont. 272, 686 P.2d 193, 199-200 (1984).

      . See Smith v. State, 259 Ga. 135, 377 S.E.2d 158, 160 (1989); People v. McClure, 42 Ill.App.3d 952, 1 Ill.Dec. 617, 356 N.E.2d 899, 901 (1976); Little v. State, 413 N.E.2d 639, 643 (Ind.App.1980); Beck v. State, 824 P.2d 385, 388-89 (Okla.Crim.App.1991); State v. Izzi, 115 R.I. 487, 348 A.2d 371, 372-73 (1975); Miller v. State, 105 Nev. 497, 779 P.2d 87, 89-90 (1989).

      . See John Henry Wigmore, Evidence in Trials at Common Law (Chadbourn rev'n 1970), §§ 956-964, Vol. 3A, pp. 802-812.

      . Wigmore, § 956, Vol. 3A, pp. 802-03.

      . Lopez v. State, 18 S.W.3d 220, 225 (Tex.Crim.App.2000).

      . See Lopez 18 S.W.3d at 225; State v. Nab, 245 Or. 454, 421 P.2d 388, 390-91 (1966); State v. Barber, 13 Kan.App.2d 224, 766 P.2d 1288, 1289-90 (1989).

      . Alaska Evidence Rule 104(b) states: "When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition."

      . State v. Smith, 743 So.2d 199, 203 (La.1999), citing Huddleston v. United States, 485 U.S. 681, 690, 108 S.Ct. 1496, 1501, 99 L.Ed.2d 771 (1988).

      . See State v. DeSantis, 155 Wis.2d 774, 456 N.W.2d 600, 606-07 (1990).

      . See State v. LeClair, 83 Or.App. 121, 730 P.2d 609, 613-16 (1986).

      . State v. Hutchinson, 141 Ariz. 583, 688 P.2d 209, 212-13 (App.1984).

      . Smith v. State, 259 Ga. 135, 377 S.E.2d 158, 160 (1989); State v. Barber, 13 Kan.App.2d 224, 766 P.2d 1288, 1290 (1989); Clinebell v. Commonwealth, 235 Va. 319, 368 S.E.2d 263, 266 (1988).

      . State v. Superior Court, 154 Ariz. 624, 744 P.2d 725, 730-31 (App.1987), disapproved on other grounds by State v. Getz, 189 Ariz. 561, 944 P.2d 503, 506-07 (1997); Little v. State, 413 N.E2d 639, 643 (Ind.App.1980); State v. Anderson, 211 Mont. 272, 686 P.2d 193, 199-200 (1984); State v. Kringstad, 353 N.W.2d 302, 311 (N.D.1984).

      . Hughes v. Raines, 641 F.2d 790, 792 (9th Cir.1981); State v. Kringstad, 353 N.W.2d 302, 311 (N.D.1984).

      . State v. Kringstad, 353 N.W.2d 302, 311 (N.D.1984).

      . See Covington, 703 P.2d at 442.

      . Id. at 442.

      . See United States v. Watts, 519 U.S. 148, 155, 117 S.Ct 633, 637, 136 LEd.2d 554 (1997); Dowling v. United States, 493 U.S. 342, 359-360, 110 S.Ct. 668, 678, 107 L.Ed.2d 708 (1990).

      . See State v. Hutchinson, 141 Ariz. 583, 688 P.2d 209, 213 (App.1984); People v. Alexander, 116 Ill.App.3d 855, 72 Ill.Dec. 338, 452 N.E.2d 591, 595 (1983).

      . MacDonald, 956 P.2d at 1315-16.

      . Id. at 1316-17.

      . Id. at 1318.

      . See United States v. Withorn, 204 F.3d 790, 795 (8th Cir.2000); State v. Anderson, 211 Mont. 272, 686 P.2d 193, 200 (1984).

      . Covington, 703 P.2d at 442.

      . State v. West, 95 Hawai'i 452, 24 P.3d 648, 655 (2001).

      . Id. at 656.

      . See Miller v. State, 105 Nev. 497, 779 P.2d 87, 90 (1989).

      . See State v. White, 145 N.H. 544, 765 A.2d 156, 159 (2000); State v. Johnson, 102 N.M. 110, 692 P.2d 35, 43 (App.1984); Hughes v. Raines, 641 F.2d 790, 792 (9th Cir.1981); see also Clinebell v. Commonwealth, 235 Va. 319, 368 S.E.2d 263, 266 (1988) (holding that, because two of the complaining witness's claims were "patently untrue", there was a "reasonable probability" that two other accusations made by her were false as well).

      . The foundational facts required to establish the admissibility of a co-conspirator's statement must be proved to the trial judge by a preponderance of the evidence. Arnold v. State, 751 P.2d 494, 502 (Alaska App.1988).
      The government must prove the voluntariness of a defendant's confession by a preponderance of the evidence. John v. State, 35 P.3d 53, 62 (Alaska App.2001).
      False statements in an affidavit supporting a search warrant must be struck unless the State shows, by a preponderance of the evidence, that the statements were not made intentionally or with reckless disregard for the truth. State v. Malkin, 722 P.2d 943, 946 (Alaska 1986); Wallace v. State, 933 P.2d 1157, 1163 (Alaska App.1997).
      The state bears the burden of proving the validity of a Miranda waiver by a preponderance of the evidence. State v. Ridgely, 732 P.2d 550, 554-55 (Alaska 1987).
      But compare Reutter v. State, 886 P.2d 1298, 1307-08 (Alaska App.1994), where the court rejected the "preponderance of the evidence" standard and held that the government must prove its foundational facts by clear and convincing evidence when it seeks to have a child victim in a sexual abuse case testify outside the presence of the defendant pursuant to AS 12.45.046:
      Given the constitution's express protection of confrontation as an individual right of the accused, and ... [blecause of the integral role confrontation plays in the adjudication of innocence and guilt, and its direct bearing on the integrity of fact-finding at trial, ... any risk of error in balancing the individual right against the countervailing public interest must fall on the side of protecting the innocent from an unjust conviction.... [The preponderance of the evidence standard cannot provide such protection, and no dilution of the right to confrontation should be permitted without an express finding that the requirements of AS 12.45.046 ... have been met by clear and convincing evidence.

      . State v. West, 95 Hawai'i 452, 24 P.3d 648, 657 (2001).

      . See People v. Sheperd, 37 Colo.App. 336, 551 P.2d 210, 212-13 (1976); Shelton v. State, 196 Ga.App. 163, 395 S.E.2d 618, 620 (1990) (holding that when the trial judge has erroneously refused to hear the defendant's evidence of a possibly false accusation, the remedy is to give the defendant the opportunity to present the evidence).

      . See Covington v. State, 703 P.2d 436, 441-42 (Alaska App.1985).

      . 703 P.2d 436.