author: MATTHEWS, Justice.

text:
    Thomas SHOOK, and all other similarly situated employees, Appellants, v. ALYESKA PIPELINE SERVICE COMPANY, an Alaska corporation, Appellee.
    No. S-9530.
    Supreme Court of Alaska.
    July 26, 2002.
    Walter H. Garretson, Bryan M. Emmal, Anchorage, for Appellants.
    Charles P. Flynn, Burr, Pease & Kurtz, Anchorage, Mark H. Epstein, Munger, Tolies & Olson, Los Angeles, California, for Appel-lee.
    Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

MATTHEWS, Justice.

I. INTRODUCTION

Thomas Shook appeals the superior court’s decertification of his class action suit brought against Alyeska Pipeline Service Company under the Alaska Wage and Hour Act. Because the superior court did not specify any reasons under Civil Rule 23 for decertifying the class, we remand this case to the superi- or court for reconsideration of the decertifi-cation. If the superior court chooses on remand to decertify or narrow the class, it must explain its reasoning for so doing under the standards set out in Rule 23.

II. FACTS AND PROCEEDINGS

Thomas Shook worked for Alyeska Pipeline Service Company as a senior business systems analyst from August 1982 until March 1995. He was classified as exempt under the Alaska Wage and Hour Act (“AWHA”) and the Fair Labor Standards Act (“FLSA”). His salary was therefore unrelated to “the quality or quantity of the work performed,” and he was not eligible to receive overtime pay.

During most of the time that Shook was employed with Alyeska, Alyeska had a disciplinary policy that included the possibility of suspension without pay. This policy at least arguably applied to all employees, whether classified as exempt or non-exempt. The policy was revised in January 1995 to apply only to non-exempt employees, but prior to this revision, exempt employees were suspended without pay on fourteen separate occasions.

On May 5, 1995, Alyeska terminated Shook’s employment and the parties entered into an Involuntary Severance Plan, under which Shook signed a release in return for a severance payment of $141,496.73. On May 11, 1995, Shook filed a class-action complaint against Alyeska alleging violations of the Alaska Wage and Hour Act, specifically arguing that exempt employees were owed overtime pay because they were not actually being paid “on a salary basis,” and thus were not exempt from the AWHA’s requirement of overtime pay. In January 1996 Shook moved to certify a class action pursuant to Civil Rule 23(b)(3). In July 1996 the superi- or court certified a class of “all persons employed by Alyeska Pipeline Service Company between 11 May 1992 and 11 May 1995 who were classified as exempt from overtime compensation.”

Alyeska immediately moved for summary judgment against Shook individually, arguing that Shook’s claim had been released and was extinguished by a prior severance payment. The superior court denied the motion, and Alyeska petitioned this court to review the denial of summary judgment. We granted the petition. Meanwhile, Shook requested that the superior court approve a class notice procedure and form.

In 1997 the United States Supreme Court issued its opinion in Auer v. Robbins, narrowing the definition of what “on a salary basis” means under the Federal Fair Labor Standards Act. The superior court requested supplemental briefing from the parties in light of that decision. After receiving supplemental briefs from the parties, the superior court heard oral argument on the significance of Auer. Shortly thereafter, the superior court vacated the class certification “on the question of whether Alyeska employees subject to suspension without pay were properly classified as exempt....” Shook moved for reconsideration of the superior court order decertifying the class and in November 1997 the superior court denied the motion.

In April of 1999 we reversed the superior court’s denial of Alyeska’s motion for summary judgment against Shook individually, and remanded the case for entry of judgment against Shook. In our opinion, we noted that “[t]his result does not require dismissal of the class action. The class should have [an] opportunity to substitute a new class representative.” Shook moved for entry of final judgment so that he could appeal the order vacating class certification. On January 4, 2000, the superior court entered final judgment dismissing Shook’s complaint. This appeal followed.

Alyeska subsequently filed a motion in this court to dismiss this appeal for lack of standing. Shook opposed the motion to dismiss and on June 29, 2000, Rocky Garcia submitted a motion to this court seeking to be allowed to intervene in the case. Alyeska opposed Garcia’s motion to intervene. In August 2000 a single justice of this court issued an order dismissing Shook’s appeal and denying Garcia’s motion to intervene as untimely. Shook sought reconsideration of the dismissal and the full court reinstated the appeal. Alyeska filed a motion for reconsideration of the reinstatement order. We denied Alyeska’s motion for reconsideration and the appeal proceeded.

III. STANDARD OF REVIEW

We review a superior court’s decision whether to certify a class under an abuse of discretion standard. If, however, the superior court’s ruling is based on an erroneous legal premise, we review the issue de novo. We resolve “issues of standing and mootness using our independent judgment because, as matters of judicial policy, these are questions of law.”

IV. DISCUSSION

A. Shook Does Have Standing To Appeal the Decertification of the Class.

Shook asserts that the fact that this court “has twice voted to sustain the appeal” means that the issue of whether he has standing to bring the appeal “seems to have been decided.” Alyeska contends that Shook lacks standing to bring this appeal, as his individual claims have been dismissed and he is therefore no longer eligible for membership in the class. Shook is correct. In our order of October 6, 2000, we ruled that Shook had standing to appeal the decertification of the class. As Shook is no longer eligible to be a member of the class, however, the first priority on remand should be substitution of a new class representative.

B. The Superior Court Erred in Decer-tifying the Class without Specifying Its Reasons.

Shook argues that the superior court erred in vacating the class certification. He contends that the court improperly reached the merits and considered liability issues when evaluating whether to decertify the class, and that even if the court were allowed to reach the merits, it was incorrect in decer-tifying the class.

Shook cites Eisen v. Carlisle & Jacquelin for the proposition that a court should not consider the merits of a case in determining whether to certify a class. Shook is correct. In Eisen, the United States Supreme Court wrote:

We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action. Indeed, such a procedure contravenes the Rule .... “In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.”[]

Therefore, to the extent that the superior court reached the merits in deciding to de-certify the class, this would be an abuse of discretion.

After the United States Supreme Court decided Auer v. Robbins, the superior court ordered supplemental briefing by the parties. After receiving the briefs and hearing oral argument, the superior court decertified the class. The superior court cited to Auer in its order decertifying the class; however, it did not state grounds for decertification. In its subsequent order denying reconsideration, the superior court provided more information on why it decertified the class, but did not make any reference to Civil Rule 23. The court’s reasons for decertification were that “Auer provides that the mere existence of a disciplinary policy (which might be applied to salaried employees in a way which would demonstrate the non-salaried nature of their position) does not make salaried employees non-salaried” and that “Auer allows an employer to use a window of correction to reverse limited improper applications of a general policy to positions which are truly salaried. That has occurred here.” These reasons go to the merits of the case rather than to the grounds for maintaining it as a class action.

Because the superior court made no mention of Civil Rule 23, or any of its requirements, and instead gave merit-related grounds for its order, a remand is necessary.

On remand, if the court chooses to decertify the class, it should explain its reasons for doing so. The court may also consider narrowing or decertifying the class based on current circumstances, including the existence of other lawsuits.

V. CONCLUSION

Because the superior court did not specify any reasons under Civil Rule 23 for decerti-fying the class, we REMAND this case to the superior court for reconsideration of the de-certification.

      . AS 23.10.050 et seq. (1962).

      . 29C.F.R. § 541.118(a); AS 23.10.055.

      . The written policy was listed as affecting "All Employees.”

      . 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997).

      . 29 U.S.C. § 201 et seq. (1938).

      . Alyeska Pipeline Serv. Co. v. Shook, 978 P.2d 86 (Alaska 1999).

      . Id. at 91.

      . State, Dep't of Rev. v. Andrade, 23 P.3d 58, 65 (Alaska 2001).

      . Jenkins v. Daniels, 751 P.2d 19, 21 (Alaska 1988).

      . Ulmer v. Alaska Rest. & Beverage Ass'n, 33 P.3d 773, 776 (Alaska 2001).

      . 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974).

      . Although Eisen refers to Federal Civil Rule 23, and not Alaska Civil Rule 23, we have previously cited United States Supreme Court cases on Civil Rule 23 given "the identity between our Civil Rule 23 and the corresponding federal rule.” Nolan v. Sea Airmotive, Inc., 627 P.2d 1035, 1041 (Alaska 1981).

        .Eisen, 417 U.S. at 177-78, 94 S.Ct. 2140 (quoting Miller v. Mackey Int’l, 452 F.2d 424, 427 (5th Cir.1971)). Shook also cites Newberg on Class Actions and Moore's Federal Practice for roughly the same proposition. Newberg on Class Actions § 3.29 (3d ed.) ("It is also settled that the named plaintiff need not demonstrate a probability of success on the merits...."); Moore's Federal Practice § 23.61[5] (3d ed.) ("[C]ourts do not have authority to conduct a preliminary inquiry into the merits of a case in order to determine if it may be conducted as a class action.”).

      . Bartold v. Glendale Fed. Bank, 81 CaI.App.4th 816, 97 Cal.Rptr.2d 226, 234 (2000):
      The appeal of an order denying class certification presents an exception to the general rule that a reviewing court will look to the trial court's result, not its rationale. If the trial court failed to follow the correct legal analysis when deciding whether to certify a class action, "an appellate court is required to reverse an order denying class certification ...., 'even though there may be substantial evidence to support the court’s order.’ ” ■ In other words, we review only the reasons given by the trial court for denial of class certification, and ignore any other grounds that might support denial.
      (Citations omitted.)

      . Civil Rule 23(c)(4)(B) provides that "[w]hen appropriate ... a class may be divided into subclasses and each subclass treated as a class.”


source: Caselaw Access Project

author: COATS, Chief Judge. MANNHEIMER, Judge,

license: Public Domain

text:
    William B. OSTLUND, Appellant, v. STATE of Alaska, Appellee.
    No. A-7787.
    Court of Appeals of Alaska.
    July 26, 2002.

      Bill D. Murphree, Bill D. Murphree, P.C., and Robert John, Law Office of Robert John, Fairbanks, for Appellant.
    W.H. Hawley, 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.

A jury convicted William B. Ostlund of felony driving while intoxicated (DWI) and driving with a revoked operator’s license. He raises two issues on appeal: (1) whether the trial judge erred when she denied his motion to bifurcate the trial so the jury would not hear evidence of his prior convictions before deliberating on the current DWI allegation and (2) whether the trial judge erred in failing to give a jury instruction regarding photographs he contends the police might have taken at the scene of his alleged offense. We reverse Ostlund’s convictions because we find the trial court erred when it did not bifurcate Ostlund’s trial. However, we find no error in the trial judge’s refusal to give the proposed jury instruction regarding the photographs.

Ostland’s -motion to bifurcate his felony DWI trial

A defendant commits felony DWI when he drives while intoxicated and has two or more prior convictions for DWI or refusal to submit to a chemical test within the past five years. The state charged Ostlund with felony DWI for driving while intoxicated while having two prior DWI convictions within the past five years. Prior to trial, Ostlund argued that presenting evidence of his prior convictions to the jury would prejudice the jury in reaching a decision about whether he had committed his current DWI offense. He argued that the court should have the jury only determine whether he had committed the present offense of driving while intoxicated. He agreed to stipulate to the two prior convictions if the jury convicted him of driving while intoxicated. Superior Court Judge pro tem Jane F. Kauvar denied Ostlund’s request. As a result of Judge Kauvar’s ruling, the parties stipulated to the two prior DWI convictions and Judge Kauvar advised the jury of Ostlund’s prior convictions. Following the presentation of evidence, the jury convicted Ostlund of felony driving while intoxicated.

In State v. McLaughlin, this court discussed the prejudice that could accrue to a defendant from introducing his prior convictions in a case where the prior convictions are an element of the offense:

Both in Alaska and elsewhere, courts have recognized that evidence concerning the number and nature of a defendant’s prior convictions can pose a serious risk of prejudice when introduced in a case in which a prior conviction is an element of the offense charged. For this reason, appellate courts have generally agreed that the trial court has broad discretion to limit the amount of evidence allowed on the issue and to regulate the form in which it is presented, particularly when the defendant does not dispute the prior conviction’s existence.

McLaughlin was charged with the offense of felon in possession (possession of a coneeala-ble firearm by a previously convicted felon). He sought to keep the state from presenting evidence of his prior conviction to the jury, fearing that the jury might be prejudiced against him because he had a prior felony conviction. McLaughlin offered to stipulate to his prior conviction and have the court withdraw the prior conviction element from the jury. The trial judge agreed with McLaughlin and ruled that the jury would decide only the issue of whether McLaughlin knowingly possessed a concealable firearm— McLaughlin’s criminal history would be inadmissible unless it somehow became relevant to other issues arising during the course of the trial.

The state filed a petition for review to this court. The state argued that McLaughlin’s prior felony conviction was an element of McLaughlin’s offense and the trial court had no authority to prevent the state from presenting evidence of this element to the jury. We accepted the state’s petition for review, and a majority of this court reversed the trial court’s decision.

The court stated that the issue was close. The court reasoned that, if the issue was strictly an evidentiary matter, a strong case could be made to exclude McLaughlin’s prior conviction.

In most cases, however, once the defendant concedes the prior conviction element, evidence of prior convictions would have no evidentiary relevance except to establish the defendant’s general propensity to commit crimes — an impermissible, and therefore illegitimate, purpose under Alaska Rule of Evidence 404(b)(1).

But the court concluded that other policy arguments supported the government’s introduction of evidence to prove McLaughlin had prior felony convictions. The court reasoned that if the jury was only allowed to act as a fact-finder to determine whether McLaughlin had possessed a firearm, the jury might be left with the inaccurate impression that McLaughlin was being prosecuted for conduct that was not unlawful. Because possession of a concealable firearm is generally legal, the government’s prosecution of McLaughlin only made sense because he was a convicted felon. The court concluded that it was necessary for the jury to understand why it was convicting or acquitting the defendant for the jury to properly fulfill its role in the criminal justice system.

The court specifically limited its decision to cases where the defendant’s conduct was conduct that was ordinarily lawful but became unlawful because the defendant had a prior felony conviction:

We further note that our decision addresses only the specific circumstances of this case, in which the charged offense consists of conduct that is ordinarily lawful, which is rendered unlawful only because of the defendant’s prior conviction of a felony. By contrast, other types of crimes that include the existence of a prior felony conviction as an element deal with conduct that is already independently unlawful; in such eases, the prior-conviction element serves only to enhance the seriousness of the offense.
In this latter type of case, failing to inform the jury of the prior-conviction element arguably entails few of the problems presented in the former type of case[.]

In Ross v. State, we addressed the kind of offense we had reserved judgment on in McLaughlin; an offense where the defendant’s conduct, driving while intoxicated, was independently unlawful and where the defendant’s prior convictions served only to enhance the seriousness of the offense.

Ross contended that his prior DWI convictions were strictly a matter for the court to consider at sentencing rather than an element of felony DWI'. He contended that because his prior convictions were not an element of the offense, it was improper for the trial court to allow the jury to hear evidence of his prior DWI convictions. He did not otherwise suggest to the trial court any specific procedures to protect himself from any unfair prejudice caused by the jury considering his prior convictions. We held that the prior convictions are an element of felony DWI. We declined to find that the trial judge committed plain error by allowing the jury to consider both Ross’s prior convictions and his DWI offense simultaneously. We recognized the prejudice that might result from having the court inform the jury that the defendant had committed the identical offense on prior occasions, and we recommended to judges that they bifurcate felony. DWI trials:

Another way of dealing with this problem — one that we recommend to judges in the future — is to bifurcate the trial. In a bifurcated trial, the jury would first decide whether the defendant was guilty of driving while intoxicated on the date specified in the indictment; if the jury found the defendant guilty, the same jury would then decide the issue of the defendant’s prior convictions. This solution would preserve both parties’ right to a jury determination of all issues, while at the same time avoiding the potential for unfair prejudice that would otherwise be posed by evidence of the defendant’s prior convictions. Moreover, this solution works equally well regardless of whether the defendant is willing to stipulate to the prior convictions or wishes to contest them.

We also pointed out that, if the defendant and the state were willing to waive jury trial on the prior-convictions element of felony DWI, then this element could be tried to the court.

We fail to see why Judge Kauvar did not agree to this procedure. , The state never argued that Ostlund’s prior offenses were relevant for any purpose other than to establish that his driving while intoxicated offense was a felony. By holding a unitary trial in which the state was allowed to present evidence that Ostlund had two prior convictions for DWI, the judge unnecessarily presented the jurors with information that could have unfairly prejudice their deliberations. Having heard that Ostlund had committed DWI on two prior occasions, the jury might have used this information for the purpose prohibited by Evidence Rule 404(b)(1): to infer that Ostlund was a person who characteristically drove while intoxicated, thus making it more likely that he was guilty of the current DWI charge.

We note that the majority of jurisdictions considering this issue have created procedures for the trial court to try the felony DWI without the jury being informed of the prior convictions during its consideration of the current DWI offense. Those jurisdictions have concluded that the Ross recommendations (ie., bifurcation, stipulation, or waiver) are the proper ways to try felony DWI offenses to protect a defendant from being unfairly prejudiced by evidence of his earlier DWI convictions.

[Ajbsent the bifurcated process, the jury is directly confronted with evidence of the defendant’s prior criminal activity and the presumption of innocence is destroyed and ... if the presumption of ... [innocence] is destroyed by proof of an unrelated offense, it is [all the] more easily destroyed by proof of a similar related offense. Accordingly, we conclude that Judge Kau-

var abused her discretion by failing to adopt the procedures we recommended in Ross. We therefore reverse Ostlund’s convictions.

Ostlund’s request for a jury instruction that absent photographs should have been presumed to favor him

Ostlund argues that Judge Kauvar erred in failing to give an instruction concerning some photographs he contends the police might have taken at the scene of his alleged DWI offense. Ostlund argues the court should have instructed the jury that, if the jury found the police had taken and failed to preserve photographs from the scene of the alleged DWI offense, the jury should assume the missing evidence would have been favorable to the defendant. But the sole evidence that photographs were taken at the scene was a “checked” box on the police report stating that the officers took photographs of the scene. The testimony at trial was that the troopers had not taken any photographs and that the checked box on the police report was probably a clerical error.

After hearing the evidence, Judge Kauvar refused to give Ostlund’s proposed instruction. She concluded that the police had not taken any photographs. She also concluded that even if photographs existed, there was no evidence that they would have been relevant to resolving any contested fact.

We conclude Judge Kauvar did not err in determining that the evidence indicated the police did not take any photographs and that, even if photographs had been taken, they would not have been relevant to determining any contested fact. In Catlett v. State, the Alaska Supreme Court held that even though the police lost or destroyed photographs of the crime scene, the defendant was not prejudiced when the record showed that the photographs would have been cumulative of other available evidence. In Lee v. State, this court held that even if the police failed to preserve two traffic signs that were allegedly hit and broken off by the defendant’s car, the defendant failed to show prejudice in light of the fact the trial judge found that, under the circumstances, the signs would not have been exculpatory. We conclude that Judge Kauvar did not abuse her discretion in refusing to give Ostlund’s proposed instruction.

Conclusion

Ostlund’s request for bifurcation should have been granted. For this reason, his convictions are REVERSED. However, assuming Ostlund is retried, we uphold Judge Kauvar’s decision to reject Ostlund’s proposed instruction regarding the photographs.

MANNHEIMER, Judge,

concurring.

I agree that Ostlund’s trial should have been bifurcated, but I am writing separately to more fully explain our stand on this issue.

Judge Coats begins his substantive discussion of the bifurcation issue with a quotation from State v. McLaughlin. In this passage from McLaughlin, this court acknowledged that a trial judge has “broad discretion” when formulating the rules that will govern the admission of evidence of a defendant’s prior convictions. But a dozen paragraphs later, Judge Coats concludes that Ostlund is entitled to a new trial because his trial judge did not follow a procedure that we recommended — but did not mandate — in Ross v. State, 950 P.2d 587, 592 (Alaska App.1997). If trial judges have broad discretion in this area, why are we substituting our judgement for the trial judge’s? Why do we conclude that Ostlund’s judge abused her discretion when she declined to bifurcate the trial?

As we indicated in McLaughlin, the answer lies in the balancing of two competing principles. One is the law’s traditional ban on “propensity” evidence — the use of a defendant’s other crimes to prove the defendant’s character. The other is the law’s insistence that jurors be apprised of all the relevant facets of the episode and the conduct that they are being asked to judge.

Our decision in State v. McLaughlin

When a jury hears evidence that a defendant has previously committed the same crime currently charged against him, there is a danger that the jurors will view the defendant’s past crimes as evidence that the defendant is a person who characteristically engages in this type of criminal behavior — and that the jurors will presume the defendant’s guilt from the fact that the defendant has done it before. This is why Alaska Evidence Rule 404(b)(1) bars evidence of a defendant’s other wrongdoings when this evidence has no relevance other than to prove the defendant’s characteristic tendency to engage in crime, thus circumstantially tending to show that the defendant committed the crime being litigated.

When a defendant is charged with an offense that requires proof of prior convictions, one might reasonably contend that the situation is different because, in these circumstances, the defendant’s prior crimes have a relevance outside the normal ban on character evidence. But the question presented is also different: not whether evidence of the defendant’s past crimes is to be excluded completely, but rather whether this evidence should be presented in a separate portion of the trial.

In McLaughlin, we acknowledged that even though Evidence Rule 404(b)(1) technically does not apply to this situation, the policy of Rule 404(b)(1) strongly suggests that the issue of the defendant’s prior convictions should be segregated from the other issues in the case, at least when the defendant is willing to concede the prior convictions:

From the narrow standpoint of eviden-tiary relevanee[,] a strong case can be made that the evidence of [a defendant’s] prior convictions should ... be excluded. The specific circumstances of some felon-in-possession cases might give the state legitimate reasons to introduce evidence of [the defendant’s] prior convictions even though the defendant is willing to concede the prior — conviction element. In most cases, however, once the defendant concedes the prior-conviction element, evidence of prior convictions would have no evidentiary relevance except to establish the defendant’s general propensity to commit crimes — an impermissible, and therefore illegitimate, purpose under Alaska Rule of Evidence 404(b)(1).

Id. at 1273.

But despite this potential for unfair prejudice, we rejected bifurcation in McLaughlin. The defendant in McLaughlin was charged with the crime of being a “felon in possession” — i.e., possessing a concealable firearm after having been convicted of a felony. We concluded that when a defendant stands trial for this charge, the policy of Rule 404(b)(1) is outweighed by the competing policy of having the jury fully informed concerning the crime they are asked to judge.

As we pointed out in McLaughlin, “[t]he jury’s historical role in our criminal justice system is more than that of fact finder: the jury has always served as the vehicle of community conscience in the courtroom”. Because of this, evidence of the defendant’s other crimes should be admitted (despite its potential for unfair prejudice) when this evidence is needed for the jury’s complete understanding of the defendant’s alleged present wrongdoing. “Essential to the jury’s ability to fulfill its traditional role is its full understanding of the cause at issue — the wrongdoing for which the accused has been held to answer.” McLaughlin explains this principle at some length:

Without full knowledge of the nature of the crime, the jury cannot speak for the people or exert their authority. If an element of the crime is conceded and stripped away from the jury’s consideration, the jurors become no more than factfinders. The jury must know why it is convicting or acquitting the defendant, because that is simply how our judicial system is designed to work.
The issue is one transcending a jury’s ability to determine guilt or innocence in any individual ease. It implicates the public’s trust in our system of criminal justice. If those in the inner sanctum of the criminal justice system — -the judge, the prosecutor, and defense counsel — cloister to themselves the true nature of a criminal prosecution, jurors will inevitably sense manipulation: that they are participants in a game of justice whose rules are beyond their trust. The system’s distrust of jurors will eventually mirror back upon the court in the form of public suspicion. Citizens called' upon to serve as jurors will bring with them, not a healthy skepticism toward the prosecutor’s power, but a subversive distrust of the legal process itself.

McLaughlin, 860 P.2d at 1277.

Normally, possession of a handgun is not a crime. The defendant’s prior felony is the circumstance that makes possession of the handgun illegal. We therefore concluded in McLaughlin that when a defendant is charged with violating the felon-in-possession statute, the jury must be told of the defendant’s prior felony conviction, regardless of whether this element is actually disputed— “for without knowing the true nature of the charges, the jury is deprived of context for its consideration of the issues actually in dispute.”

Evidence of a defendant’s past wrongdoing when it is relevant to establish the nature or context of the defendant’s present conduct

McLaughlin can be viewed as one of a series of Alaska cases recognizing the princi-pie that evidence of a defendant’s past wrongdoing may be needed in order for the jury to properly understand the nature or context of the defendant’s present conduct. In such circumstances, the evidence of past wrongdoing is admissible despite the restriction codified in Evidence Rule 404(b)(1).

For instance, in Dulier v. State, 511 P.2d 1058 (Alaska 1973), the defendant was charged with complicity in a murder that was physically perpetrated by two of his housemates. The State’s theory was that Dulier, through a long pattern of physical and mental abuse, established psychological control over the other people living in the house — to the point that two of them were willing to commit homicide if Dulier ordered it. The supreme court concluded that the State was properly allowed to introduce evidence of Dulier’s past acts of coercion and abuse to establish his relationship to the other people in the house — and, thus, his complicity in the murder:

[W]e hold that the probative value of the evidence of the [defendant’s] previous uncharged offenses outweighed any possible prejudicial impact_The evidence tended to show Dulier’s control and domination of the other occupants of the apartment. It proved his complicity in the unlawful killing. Because the evidence completed the picture and set the stage for the offense being tried, it was admissible.

Id. at 1061.

Similarly, in McKee v. State, 488 P.2d 1039 (Alaska 1971), the supreme court upheld the admission of evidence that the defendant had previously assaulted and raped one of the State’s witnesses:

It is true that such evidence normally would be excluded because it would not tend to establish a proposition material to appellant’s guilt. However, as we held in Kugzruk v. State, 436 P.2d 962, 967 (Alaska 1968), “evidence is admissible when it tends to complete the picture or set the stage for the crime for which the defendant is being tried.”
An eye witness to an event should be permitted to testify in a natural manner about what he observed. This ordinarily includes such background facts as where the witness was, how he happened to be there, and what interrelationship he may have had with other persons present at the event about which the witness. testifies. Otherwise the testimony of the witness may seem distorted, improbable, or incredible to some degree. To strip away such background evidence may well result in an artificial or false picture of what occurred.

Id. at 1041-42.

See also Braham v. State, 571 P.2d 631 (Alaska 1977), an attempted murder prosecution in which the State’s theory was that Braham hired another man, Jeffrey Koelzer, to murder one of Braham’s enemies. The supreme court ruled that the trial judge properly allowed the State to introduce evidence suggesting that Braham had been involved in previous attempts on the victim’s life:

An inference that the jury might well have drawn from this [evidence was] that Braham had something to do with the two prior attempts on Peterson’s life. To this extent, the evidence had a prejudicial effect. But this must be weighed against its probative value. The purpose and effect of Koelzer’s testimony was not to prove that Braham was guilty of two prior attempts on Peterson’s life. Rather, it was introduced for the purpose of showing that, since such incidents figured heavily in conversations between Braham and Koelzer, and Braham had knowledge of the attempts and gave them his moral support, Koelzer’s testimony that Braham wanted Peterson killed would be credible. At the trial, this issue was hotly disputed by Bra-ham.
The evidence in question would tend to show that it was not unbelievable, as Bra-ham contended, that Braham had hired Koelzer to kill Peterson. The record demonstrates that the evidence of prior attempts was so integrated into the story of this crime, that to exclude it would have made the factual setting of this crime incomprehensible to the fact finder. Thus the need to admit this evidence was great, and it had the permissible effect of completing the picture or setting the stage of the crime for which Braham was being tried — the attempted murder of Peterson. There was no error in admitting such evidence.

Id. at 640-41.

Although our decision in McLaughlin can be viewed as standing on the same principle as the decisions in Dulier, McKee, and Bra-ham, our holding in McLaughlin is different in one key respect. In McLaughlin, we announced a rule that governs all prosecutions for felon in possession of a eoncealable weapon. We held that, in every such case, the jurors need to be apprised of the defendant’s prior felony conviction because they need to know why they are being asked to hold the defendant criminally hable for possessing a handgun. Dulier, McKee, and Braham, on the other hand, do not stand for the proposition that evidence of a defendant’s prior wrongdoing is automatically admissible whenever it is relevant to establish the nature or context of the defendant’s present conduct. Normally, when the government seeks to introduce this type of evidence, a trial judge must still follow the directive of Evidence Rule 403, balancing the probative force of this evidence against the danger that it will unfairly prejudice the jury’s deliberations. McLaughlin dictates the result of this Rule 403 balancing in a specific recurring situation.

Evidence of prior DWI convictions in a prosecution for felony DWI

McLaughlin dealt with a prosecution for felon in possession of a eoncealable firearm. In such cases, the defendant’s underlying conduct is unlawful only because the defendant has a prior felony conviction. In McLaughlin, we ruled that the jurors need to know about the prior conviction in order to properly discharge their duties.

But Ostlund was prosecuted for felony driving while intoxicated. In such a proseeution, the defendant’s alleged underlying conduct — driving while intoxicated — is a crime in itself. The offense is elevated to a felony if the defendant has two or more prior convictions for DWI or breath-test refusal within the preceding five years, but these prior convictions do not alter the legality (or, more precisely, the illegality) of the defendant’s underlying conduct. Does it therefore follow that the jurors need not be told about the defendant’s prior convictions until after they have decided whether the defendant is guilty of driving while intoxicated on the present occasion? The answer is: it depends.

We addressed this topic in Tallent v. State, 951 P.2d 857 (Alaska App.1997). Tallent involved a prosecution for felony theft under AS 11.46.130(a)(6). This statute, like the felony DWI statute, raises misdemeanor theft to a felony if the offender has two or more prior misdemeanor theft convictions within the preceding five years. The question in Tallent was whether the trial judge should exclude all evidence of the defendant’s prior misdemeanor thefts until after the jury has decided whether the defendant is guilty of theft on the present occasion.

Tallent argued that a trial judge should have the power to exclude all evidence of a defendant’s prior crimes “whenever the existence of the prior crimes only enhances the seriousness of the current charge, and the defendant’s conduct on the current occasion is independently unlawful”. But we noted that such a rule would potentially create the same legal problem as the bifurcated trial procedure that we disapproved in McLaughlin. That is, it would allow a trial judge to artificially segregate certain aspects of the government’s case, thereby keeping the jury ignorant of the true nature and context of the defendant’s actions — and thus reducing the jurors to mere “factfinders” rather than allowing them to “serve[ ] as the vehicle of the community conscience”.

Criminal offenses often require proof of facts that can potentially sway the emotions of jurors or lead them to return a verdict based on improper considerations. For instance, under AS 11.41.500(a)(3), unarmed robbery becomes robbery in the first-degree if the robber causes serious physical injury to any person. Depending upon the severity of the injury (if, for example, the victim was maimed or permanently disfigured), such evidence might conceivably lead the jury to decide the case based on outrage at the injury suffered by the victim, rather than demanding that the government meet its full burden of proof. Tallent’s argument implies that a defendant who is prosecuted for first-degree robbery under 500(a)(3) should be able to stipulate to the victim’s injury and then demand that the trial judge (1) bar the government from introducing any evidence of the injury and (2) withhold the issue of serious physical injury from the jury. Since robbery is a crime whether or not the robber inflicts injury, the defendant’s infliction of serious physical injury “only enhances the seriousness of ... conduct [that is] independently unlawful”. Under Tallent’s reasoning, the trial judge could confine the jury to deciding whether the defendant committed second-degree robbery. However, we are aware of no legal authority to support this outcome.

Tallent, 951 P.2d at 863.

One could argue that a prosecution for felony theft (as in Tallent) or a prosecution for felony DWI (as in Ostlund’s case) does not raise these same problems. For example, in prosecutions for felony DWI, often the defendant’s prior convictions for DWI or breath-test refusal are relevant only to prove the “prior convictions” element of the offense and are not otherwise relevant to explaining the nature or context of the defendant’s current misconduct. In such instances, if the trial judge decides to keep the jury insulated from evidence of these prior crimes, the jurors can still make an informed decision regarding the currently charged DWI. Indeed, in such instances, evidence of the defendant’s prior crimes would only add an element of unfair prejudice to the evidentiary mix — the inference from character that is forbidden by Evidence Rule 404(b)(1).

But not all felony DWI prosecutions fit this mold. There will be times when a defendant’s prior commission of DWI or breath-test refusal will be relevant for some valid purpose other than merely to establish the “prior convictions” element of the offense. Both this court and the Alaska Supreme Court have encountered analogous cases. In Shane v. Rhines, 672 P.2d 895 (Alaska 1983), the supreme court suggested that a defendant’s past history of driving while intoxicated might be relevant to establish the defendant’s mens rea — to establish that the defendant’s current act of drinking and driving amounted to “reckless indifference to the [safety] of [others]”. This court acknowledged the same potential theory of relevance in Abruska v. State, 705 P.2d 1261 (Alaska App.1985). We said:

[Abruska] contends that ... the legislature intended to permit evidence of a person’s past experience when intoxicated to the extent that it would be relevant to show his appreciation of the risks he presented to others when he was intoxicated. See, e.g., Shane v. Rhines, 672 P.2d 895, 899 n. 3 (Alaska 1983). We generally agree ... that the statutory limitations on the use of evidence of intoxication to show diminished capacity ... would not prevent evidence by either the prosecution or the defense that the person’s past experiences while drunk would or would not have alerted him to the risks that he presented to others when intoxicated.

Id. at 1263-64.

We applied this theory of relevance in Jansen v. State, 764 P.2d 308 (Alaska App.1988). The defendant in Jansen was charged with manslaughter and assault for killing one person and injuring another when he drove a motor vehicle while intoxicated. At trial, Jansen disputed the mens rea of these two crimes (the culpable mental state of recklessness). To rebut Jansen’s assertion that he had not acted recklessly, the trial judge allowed the State to introduce evidence that Jansen had twice previously been convicted of DWI — thus tending to show that Jansen was subjectively aware of the risk he took when he drank alcoholic beverages knowing that he would be driving. This court concluded that the trial judge’s ruling was a proper exercise of discretion under Evidence Rule 403.

Thus, a felony DWI defendant’s prior offenses will sometimes be independently relevant (i.e., relevant for a purpose other than to prove the “prior convictions” element of the offense), and sometimes not. This fact, coupled with the balancing test mandated by Evidence Rule 403, means that no one rule will fit all cases. Thus, felony DWI prosecutions are not amenable to a uniform solution like the one we adopted in McLaughlin to govern felon in possession cases.

If evidence of the defendant’s prior crimes is independently relevant, and if the trial judge performs the balancing mandated by Rule 403 and concludes that evidence of these crimes should be admitted, then bifurcation is no longer an issue. The judge will have concluded that the jury needs to hear evidence of the prior crimes in order to adequately understand the nature and context of the defendant’s current conduct, so a unified trial is the answer. As we noted in Ross v. State, the question of a bifurcated trial arises “only in cases ... where the [defendant’s] prior convictions have no relevance other than to prove the ‘prior convictions’ element of [felony DWI]”.

But in Ostlund’s case, the State concedes that Ostlund’s prior offenses were not relevant for any purpose other than to establish the “prior convictions” element of the felony offense. In these circumstances, what is a trial judge allowed — or obliged — to do?

Our decision in Ross v. State

In Ross v. State, 950 P.2d 587 (Alaska App.1997), we were asked to decide whether a felony DWI trial should be bifurcated, but the bifurcation issue was posed in a slightly different legal context. The defendant in Ross contended that a defendant’s prior convictions were not an element of the offense but, rather, a factor that enhanced the penalty for the crime. Under this reasoning, the jury would never hear about the prior convictions — because sentencing decisions are made by the judge. Ross thus argued that evidence of his prior convictions should be presented to the judge (if the jury convicted him of the current DWI).

We rejected this construction of the felony DWI statute. Instead, we held that a defendant’s prior convictions are an element of the offense, an element that must be alleged in the indictment and proved beyond a reasonable doubt at trial.

At the same time, we recognized that when a defendant’s prior offenses are not relevant for any purpose other than to prove the “prior convictions” element of the offense, the jury’s verdict could be unfairly influenced by this evidence. In situations where evidence of the prior offenses is not needed for the jury’s proper understanding of the defendant’s current misconduct, evidence of those prior offenses would serve only to raise the inference prohibited by Evidence Rule 404(b)(1) — an inference of the defendant’s bad character or “propensity” to drive while intoxicated.

But because the defendant’s prior convictions constitute an element of felony DWI, the trial judge can not exclude all evidence of the prior convictions under Rule 404(b)(1). The jury must ultimately be made aware of the convictions so that they can reach a decision on each element of the offense. To resolve this difficulty, we recommended a bifurcated trial:

In a bifurcated trial, the jury would first decide whether the defendant was guilty of driving while intoxicated on the date specified in the indictment; if the jury found the defendant guilty, the same jury would then decide the issue of the defendant’s prior convictions. This solution would preserve both parties’ right to a jury determination of all issues, while at the same time avoiding the potential for unfair prejudice that would otherwise be posed by evidence of the defendant’s prior convictions. Moreover, this solution works equally well regardless of whether the defendant is willing to stipulate to the prior convictions or wishes to contest them.

Ross, 950 P.2d at 592.

Ostlund’s case

The trial judge in Ostlund’s case was aware of our decision in Ross, but she noted (correctly) that our recommendation for a bifurcated trial in these situations was just that — a recommendation. The precise issue raised in Ross was whether a defendant’s prior convictions are an element of felony DWI. Our precise holding was that the prior convictions are an element of felony DWI, and thus the jury (not the trial judge) must decide this element. Because the issue of a bifurcated trial was not directly litigated in Ross, we phrased our comments on this subject as a recommendation rather than a mandate. And, because our recommendation concerning a bifurcated trial was only dictum, Ostlund’s trial judge rightly concluded that this recommendation did not bind her.

But Ostlund’s case presents the bifurcation issue directly. In the superior court, Ostlund expressly asked his trial judge to bifurcate the trial (in the manner we recommended in Ross), and in this appeal he directly challenges the trial judge’s refusal to do so. We therefore must formulate a rule to govern these cases.

For the reasons explained above, I reach the following conclusions:

When a defendant is tried for felony DWI, and when the defendant’s previous offenses have no relevance other than to prove the “prior convictions” element of the offense, a trial judge should bifurcate the trial so that the jury’s deliberations on the current DWI are not unfairly prejudiced by evidence of the defendant’s prior similar crimes — evidence that, in other circumstances, would be barred by Evidence Rule 404(b)(1).

If the defendant’s previous offenses are relevant for some other purpose, and if the trial judge concludes (under Evidence Rule 403) that the probative value of this evidence is not outweighed by its potential for unfair prejudice, then the trial should not be bifurcated — for, in these circumstances, the jury should be allowed to consider all of the relevant evidence as a whole.

If the answer is in doubt — if it is unclear, when the trial begins, whether evidence of the defendant’s previous crimes will be admissible for a purpose other than to prove the “prior convictions” element — then a judge should err on the side of caution and initially bifurcate the trial. If the judge later decides that the defendant’s offenses are admissible for another purpose, it should be relatively easy to convert the bifurcated trial to a unified trial — much easier than trying to convert a unified trial into a bifurcated one.

In Ostlund’s case, his prior offenses were relevant for only one purpose — to establish the “prior convictions” element of the offense. Accordingly, the trial judge should have bifurcated Ostlund’s trial when he asked for this procedure. I therefore join the decision to reverse Ostlund’s convictions.

      . AS 28.35.030(a), (n).

      . AS 28.15.291(a).

      . AS 28.35.030(n), (o)(4). Alaska Statute 28.35.030(n) states: "A person is guilty of a class C felony if the person is convicted of driving while intoxicated and has been previously convicted two or more times within the five years preceding the date of the present offense."

      .860 P.2d 1270 (Alaska App. 1993).

      . Id. at 1272 (footnote omitted).

      . Id. at 1271.

      . Id. at 1272.

      . Id.

      . Id. at 1278.

      .Id. at 1273.

      . Id.

      . Id. at 1273-74.

      . Id. at 1274.

      . Id. at 1276-77.

      . Id. at 1278 n. 15 (citations omitted).

      . 950 P.2d 587 (Alaska App. 1997).

      . Id. at 591.

      . Id. at 589-90.

      . Id. at 590.

      . Id. at 591-92.

      . Id. at 592.

      . Peters v. State, 286 Ark. 421, 692 S.W.2d 243, 245 (1985) (requiring a bifurcated trial); Barker v. State, 52 Ark.App. 248, 916 S.W.2d 775, 776 (1996); State v. Rodriguez, 575 So.2d 1262, 1266 (Fla.1991), modified in part by State v. Harbaugh, 754 So.2d 691 (Fla.2000) (requiring a bifurcated trial); State v. Wiggins, 96 Idaho 766, 536 P.2d 1116, 1118 (1975) (approving use of a bifurcated trial); State v. Berkelman, 355 N.W.2d 394, 396-97 (Minn.1984) (requiring trial court to accept defendant's offer to stipulate to prior DWI offenses if the court finds unfair prejudice under Rule 403); State v. Saul, 434 N.W.2d 572, 574-75 (N.D.1989) (if defendant offers to stipulate to prior convictions, defendant is only tried on underlying DWI and prior convictions are not disclosed to jury); State v. Winters, 34 Or.App. 157, 578 P.2d 439, 441 (1978) (statute requires court to accept defendant's timely offer to stipulate regardless of state’s consent and prohibits disclosure of prior convictions to jury); State v. White, 338 S.C. 56, 525 S.E.2d 261, 262-63 (App.1999); State v. Anderson, 318 S.C. 395, 458 S.E.2d 56, 59 n. 2 (App.1995) (statute prevents trial court from disclosing stipulation of prior conviction to jury); State v. Florez, 777 P.2d 452, 459 (Utah 1989) (in first-degree murder trial with prior conviction as element of the offense, bifurcated trial required); State v. Nichols, 208 W.Va. 432, 541 S.E.2d 310, 322-23 (1999) (trial court required to accept defendant's offer to stipulate regardless of state's consent, and prior convictions cannot be disclosed to jury; trial court should bifurcate trial if defendant's challenge of prior convictions is meritorious); State v. Alexander, 214 Wis.2d 628, 571 N.W.2d 662, 664 & 672 (1997) (if defendant stipulates to prior convictions, trial court cannot disclose them to jury). But see State v. Geschwind, 136 Ariz. 360, 666 P.2d 460, 462 (1983); State v. Superior Court, 176 Ariz. 614, 863 P.2d 906 (App.1993); State ex rel. Romley v. Superior Court, 195 Ariz. 9, 985 P.2d 494, 496-97 (1999) (requiring a unitary trial on all elements, including element of prior DWI convictions); Weaverv. State, 713 So.2d 860, 865 (Miss.1997); Nicholson v. State, 761 So.2d 924, 928-29 (Miss.App.2000) (same); State v. Lugar, 734 So.2d 14, 15 (La.App.1999) (same); Tamez v. State, 11 S.W.3d 198, 202 (Tex.Crim.App.2000) (if defendant stipulates to prior convictions state may read existence of prior convictions as part of indictment at beginning of trial but may not present evidence of prior convictions during trial).

      . State v. Harbaugh, 754 So.2d 691, 693 (Fla.2000) (original citation and quotation marks omitted); see also State v. Nichols, 208 W.Va. 432, 541 S.E.2d 310, 322 n. 20 & 324 (1999) (quoting our decision in Ross with approval).

      . 585 P.2d 553 (Alaska 1978).

      . Id. at 557-58.

      . 760 P.2d 1039 (Alaska App.1988).

      . Id. at 1044-45.

      .860 P.2d 1270 (Alaska App.1993).

      . See id. at 1272.

      . See Smithart v. State, 946 P.2d 1264, 1270-71 (Alaska App.1997), reversed on other grounds, 988 P.2d 583 (Alaska 1999).

      . AS 11.61.200(a)(1).

      . Id. at 1276.

      . Id. at 1277.

      . The first paragraph of this passage is quoted from United States v. Gilliam, 994 F.2d 97, 101 (2nd Cir.1993).

      . McLaughlin, 860 P.2d at 1277.

      . See id. at 1059-1060.

      . See AS 28.35.030(a).

      . See AS 28.35.030(n).

      . Id. at 863.

      . McLaughlin, 860 P.2d at 1276.

      . Id. at 899 n. 3.

      . See id. at 310-11.

      . See id. at 312.

      . 950 P.2d 587, 591 (Alaska App.1997).

      . See id. at 589-590.

      . Id. at 590-91.


author: MANNHEIMER, Judge.

text:
    Albert Lee ALLEN, Appellant, v. STATE of Alaska, Appellee.
    No. A-7430.
    Court of Appeals of Alaska.
    July 26, 2002.
    Rehearing Granted Oct. 11, 2002.

      Paul E. Malin, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for Appel-lee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

In the early morning of June 15, 1994, Albert Lee Allen was visited by Devron La-bat and two female friends. The visit was not friendly: Allen had been dating Labat’s long-time girlfriend, Michelle Aquino, while Labat was in prison. Now that Labat had been released from prison, he wanted to convince Allen to stay away from Aquino.

After Labat explained his position to Allen, he left Allen’s apartment and walked over to Allen’s truck. Allen could see Labat kneeling by the truck, and he thought that Labat was trying to disable the vehicle. Allen armed himself with a butcher knife, crawled out of his apartment through a bedroom window, and approached Labat. When La-bat saw Allen coming, he started to run away, but Allen gave chase. Allen caught up to Labat, stabbed him in the stomach, then banged his head on the pavement and kicked him.

Labat died from the stab wound, and Allen was indicted for first-degree murder. At Allen’s trial, the jury convicted him of the lesser offense of second-degree murder. Allen now appeals his conviction and his resulting sentence. Allen contends that several errors occurred at his trial, beginning with jury selection and continuing through jury deliberations. We discuss each of these claims below. For the reasons explained here, we conclude that Allen’s trial was fair and that his conviction and sentence should be affirmed.

Allen’s claim that the prosecutor tainted the jury panel during the jury selection process by suggesting that Allen would receive a lesser sentence if he were convicted of second-degree murder

During jury selection, one of the prospective jurors stated that she had “philosophical” issues that might not make her a good juror. When the prosecutor asked her to explain these issues, the juror replied that she tended “to root for the underdog”. She also expressed doubt whether anyone could ever truly know another person’s “[state of] mind or know their intent”. This, she said, would make it difficult for her to decide whether a defendant was guilty.

In response, the prosecutor asked the juror how she would react in a hypothetical situation: what if the juror believed that a defendant was truly guilty of first-degree murder, but she also had sympathy for the defendant and believed that he would receive a lesser, more appropriate penalty if the jury convicted him of second-degree murder? In presenting this hypothetical, the prosecutor remarked that “most people [know] that the sentence for first-degree murder has got to be worse than the sentence for second-degree murder”.

When the prosecutor made this remark about the disparity between sentences for first- and second-degree murder, Allen’s attorney immediately objected. The defense attorney argued that the prosecutor should not be speaking about sentencing at all, and he challenged the factual accuracy of the prosecutor’s remark that sentences for first-degree murder are more severe than sentences for second-degree murder. The trial judge, Superior Court Judge Milton M. Souter, told the prosecutor: “[G]et to your point without [getting] into all this sentencing stuff’.

Despite Judge Souter’s suggestion, the prosecutor returned to the issue of sentencing. He again asked the prospective juror to imagine a situation in which a juror believed that a defendant was guilty of first-degree murder but also believed that the defendant would receive a more lenient, more appropriate sentence if the jury convicted him of second-degree murder. The prosecutor asked the prospective juror if, given her “philosophical bent”, she herself would be inclined to engage in this kind of decision-making if she was selected as a juror. When the prospective juror indicated that she was not sure what the prosecutor was asking, Judge Souter interrupted and told the juror that the question was, “Would you compromise your verdict with the idea [of] trying to get a lesser sentence for a defendant that you found to be guilty ... ?”

The judge then added, for the benefit of all the prospective jurors, that it was “not ... necessarily true that first- and second-degree murder [defendants] get different sentences”. He also instructed the jurors:

The Court: Under our system, the judge decides the sentence^] the jury decides guilt or [innocence]. [The defendant’s sentence] is left up to the judge, after a further hearing.... So the jury is always instructed [that] you cannot consider the sentence in deciding the guilt question.

On appeal, Allen contends that the prosecutor, through his questions to this prospective juror, “directly injected the impermissible subject of penalty or punishment”. He argues that “[o]nce this topic was discussed [in front of] the jury, its influence could not be erased”. He further suggests that the prosecutor’s comments about murder sentences influenced the jury’s decision to find Allen guilty of the lesser offense of second-degree murder.

We do not share this view of the matter. The prosecutor was pursuing a valid goal when he made his comments regarding murder sentences: his questions were designed to see whether the prospective juror, who had expressed a philosophical sympathy for “the underdog”, would knowingly support a compromise verdict if she thought that, by doing so, she could obtain a lesser sentence for a defendant. The implicit point of the prosecutor’s remarks was to make the juror understand that this kind of decision-making would be improper.

This implicit point was made explicit when Judge Souter interrupted the voir dire. The judge told the jurors that sentencing was a decision for the judge, not the jury, and that jurors could not consider a defendant’s potential sentence when deciding the defendant’s guilt or innocence. Judge Souter’s instructions cured any potential problem.

Finally, we note that even though Allen’s attorney objected to the prosecutor’s remarks, she never asked Judge Souter to declare a mistrial or to dismiss the existing panel of prospective jurors and summon a new one. Thus, even if we thought that the prosecutor’s remarks potentially called for a more drastic remedy than Judge Souter’s clarifying instructions, the error would be waived. When a defense attorney believes that an error requires early termination of the trial or other extraordinary relief (such as summoning a new jury panel), the defense attorney must ask the trial judge to take action when action is still possible. The claim of error can not be deferred until appeal.

Allen’s claim that the prosecutor violated a protective order that prohibited any mention of the fact that Allen had served time in jail

Allen’s theory of defense at trial was a combination of self-defense and accident. Early in the proceedings against Allen, the trial judge issued a protective order that prohibited the prosecutor from eliciting evidence that Allen had been jailed on a prior assault conviction. Allen contends that the prosecutor violated this protective order during his cross-examination of two defense witnesses, Benjamin Briggs and William J. To-ney.

Briggs testified that he had spent time in prison with Labat and that he heard Labat repeatedly threaten to kill Allen. During cross-examination, Briggs asserted that he had not seen Allen since 1997. The prosecutor then asked Briggs to describe the circumstances of his last meeting with Allen. Briggs was beginning to answer, “I was serving ...” when the defense attorney interrupted him and requested a bench conference.

In the bench conference, the defense attorney notified Judge Souter that the meeting between Briggs and Allen had taken place while Allen “was in jail on this charge”. She therefore asserted that Briggs’s impending answer was “going to violate the protective order”. To avoid this problem, the prosecutor announced that he would rephrase his question. When the cross-examination resumed, the prosecutor asked Briggs if his meeting with Allen “was ... a face-to-face meeting”. The defense attorney asked for nothing more.

Briggs finished his testimony without further incident, and then the defense called William Toney. Like Briggs, Toney testified that he had spent time in jail with Labat and he heard Labat repeatedly threaten to kill Allen.

Toward the end of Toney’s cross-examination, the prosecutor asked Toney to specify the last time he had seen Allen. Toney seemed to have difficulty with this question:

Prosecutor: When was the last time you saw Albert Allen?
Toney: I told you: a couple of months before I went to Palmer [Correctional Center] on a [probation] violation.
Prosecutor: In '94?
Toney: In '94.
Prosecutor: Okay. That was the very last time you’d ever seen Albert Allen [before] today?
Toney: No, I seen him again, incarcerated.
Prosecutor: Okay. When was the last time you saw Mr. Allen?
Toney: When was the last time I saw him?
Prosecutor: Yeah. Not “where” or “under what circumstances”. When was the last time you saw him?
Toney: I haven’t seen him for a while.
Prosecutor: Okay. Can you give us an idea of what “a while” is?
Toney: Years.
Prosecutor: Okay. It’s been years since you saw him at the Alaska Club. That’s '94.
Toney: Uh-huh.
Prosecutor: Have you seen him since that time?
Toney: Have I seen him since that time?
Prosecutor: Yeah.
Toney: Yeah, I seen him incarcerated.

At Toney’s second mention of Allen’s incarceration, the defense attorney objected. Out of the jury’s presence, she accused the prosecutor of purposely violating the protective order — by posing questions to Toney when he knew that Toney’s answers would include the information that Allen had spent time in jail. Based on this alleged misconduct, the defense attorney asked for a mistrial, but Judge Souter denied this request.

On appeal, Allen renews his contention that the prosecutor knowingly violated the protective order and that Judge Souter should have declared a mistrial. But the record does not support Allen’s assertion of knowing misconduct.

Toney twice mentioned the fact that he had spoken with Allen in jail. As shown by the excerpt quoted above, Toney’s first mention of this fact was not a responsive answer to the prosecutor’s question (“That was the very last time you’d ever seen Albert Allen [before] today?”). Rather, Toney volunteered this information.

Even though Allen’s attorney did not object to Toney’s first mention of Allen’s incarceration, the prosecutor took steps to make sure that Toney did not repeat this answer. He explained to Toney that he was not seeking information about where or under what circumstances the meeting occurred. Rather, the prosecutor told Toney, he was only asking Toney to describe when the meeting took place. In response, Toney again volunteered that he and Allen saw each other when they were incarcerated.

Given this record, Judge Souter could properly reject the defense attorney’s assertion that the prosecutor had engaged in misconduct. The judge could reasonably conclude that the problem was caused by a defense witness who ignored the wording of the prosecutor’s questions and volunteered non-responsive information on his own. Under these circumstances, the issue confronting Judge Souter was whether to grant a mistrial because of Toney’s non-responsive answers.

Allen’s attorney told Judge Souter that, to make the best of a bad situation, she might later ask the judge to instruct the jurors not to hold Allen’s incarceration against him. But the defense attorney contended that no cautionary instruction would be sufficient to cure the prejudice to Allen’s case — that “a mistrial [was] the only appropriate remedy”. Allen takes the same position on appeal.

Generally, an appellate court will defer to a trial judge’s decision as to whether a particular reference to inadmissible evidence can be cured with a clarifying or cautionary instruction or whether, instead, a mistrial is needed. We defer to the trial judge because the judge “has the opportunity to hear the tainted evidence as it is presented and to observe the impact it has on the jury”.

In several prior cases, both this court and the Alaska Supreme Court have upheld trial judges when they declined to order a mistrial under similar circumstances. For example, see Hines v. State , in which a prosecution witness referred to the defendant’s prior offenses, and Preston v. State, in which a prosecution witness referred to the fact that the defendant was on probation.

Here, the challenged testimony did not refer to specific criminal activity by Allen, but rather to the fact that Allen had been incarcerated some years before, for an unexplained reason. Judge Souter could reasonably conclude that a cautionary instruction— if such an instruction was requested — would suffice to cure any potential prejudice. In other words, Judge Souter could reasonably reject Allen’s argument that a mistrial was the only proper course of action. We therefore hold that Judge Souter did not abuse his discretion when he denied Allen’s request for a mistrial.

Allen’s claim that the trial judge refused to grant him a continuance to prepare to answer newly-disclosed evidence

Allen took the stand at trial and testified that he acted in self-defense. One of the subjects that Allen addressed in his testimony was the fact that he called the 911 emergency operator just after Labat left his apartment. In this phone call, Allen explained to the 911 operator that a man had just come to his apartment and threatened him. But when the operator told Allen that he would send the police to Allen’s apartment, Allen replied that he would handle the situation himself.

To explain why he armed himself and approached Labat rather than waiting for the police to arrive, Allen told the jury that, based on past experience, he believed that he could not afford to wait for the police. Allen described how, in 1993, he had called 911 when someone shot out the window of his car, and the police did not arrive until almost two hours later. He also described another incident in which someone broke the window of his vehicle and, although the police responded more quickly, they still took a long time to arrive.

Allen gave this testimony toward the end of the trial day. Shortly after the trial recessed, the prosecutor disclosed new information to Allen’s attorney: copies of three police reports that were prepared after the police responded to reports of vandalism from Allen in 1992, 1993, and 1994. (Two of these reports described the window-breakage incidents described in the previous paragraph; the third dealt with an incident in which Allen reported that his tires had been slashed.)

When court reconvened the next morning, Allen’s attorney did not object to the fact that this material had just been disclosed. However, she did object that the material was not complete. The defense attorney pointed out that the police report from 1992 was accompanied by a copy of the 911 dispatch (the computer-generated memo or log describing the call for assistance), but the police reports from 1993 and 1994 did not have this supporting paperwork. The defense attorney asked Judge Souter to order the prosecutor to produce the 911 dispatches from 1993 and 1994.

But Judge Souter was not inclined to interrupt the trial until the two 911 dispatches were produced. He pointed out that the trial was nearing its end, and he declared that the defense attorney should have foreseen that this material might be relevant and should have requested it earlier. Given these circumstances, Judge Souter said, “The question is whether, on the last day of trial, ... we’re going to have a continuance for you to get ... this information. I don’t think so.”

In reply, the defense attorney clarified that she was only seeking the two 911 dispatches from 1993 and 1994 — documents that were, in all likelihood, readily available to the State (since the State had already produced the 911 dispatch from the earliest incident, 1992). When Judge Souter heard the defense attorney’s explanation, he indicated that he now understood the limited nature of her request:

The Court: Okay. So your point ... is that you believe the 911 computer information from these two later calls would probably be available ...
Defense Attorney: Right.
The Court: ... because you have [already] received [the] computer information relating to an older 911 call.
Defense Attorney: Yes, Your Honor.

Judge Souter then addressed Detective Leo Brandlen, the lead investigator in the case:

The Court: Can you make a call and get those [two 911 dispatches] for us very quickly — so we can have them today, do you think?
Det. Brandlen: Yes, sir.
The Court: [By] later this morning?
Det. Brandlen: Hopefully, I’d be able to access the computer at [the Anchorage Police Department] warrants [office in] the old building lie., the Boney courthouse], and [so the documents] may be available earlier than that, Your Honor.
The Court: Will you, right now, do what you can?
Det. Brandlen: Yes, sir.

At this point, Judge Souter asked the attorneys, “Is there anything else we need to take up?” The defense attorney’s only request was for “a minute to talk to Mr. Allen, to explain to him what the court’s rulings are”. Judge Souter announced that the court would stand in recess for “two or three minutes”.

When the court reconvened, the prosecutor continued his cross-examination of Allen. Allen’s attorney never made another request regarding the 911 dispatches from 1993 and 1994. Presumably, she received them.

On appeal, Allen characterizes this incident in a very different way. He asserts that the State failed to make timely disclosure of police reports under Alaska Criminal Rule 16(b) and then, when the discovery violation came to light, Judge Souter summarily rejected the defense attorney’s request for a continuance of the trial so that she could prepare to meet this tardily disclosed evidence.

This is simply not true. As just explained, Allen’s trial attorney never asserted that the State violated Criminal Rule 16 with regard to the police reports or the 911 dispatches, nor did the defense attorney seek a continuance of the trial (other than the short recess that was granted by Judge Souter). This short recess was apparently all that was needed for the State to produce copies of the two documents that the defense attorney wanted: the 911 dispatches from 1993 and 1994. In other words, the record of Allen’s trial fails to support his claim of error.

Judge Souter’s ex parte contact with the jurors during their deliberations

Allen’s case went to the jury on March 8, 1999. On the afternoon of March 10th, the jury announced that they had reached a decision, and the parties assembled in court to hear the verdict. But before the jury was brought into the courtroom, Judge Souter informed the parties of an incident that had occurred earlier that afternoon:

The Court: During deliberations this afternoon, the bailiff informed me that the jurors could not get the video machine to work. I said, ... “Why don’t we just have one of the jurors come out of the jury room and I’ll show them how to work the video machine.” ... So the juror came out and said, “Oh, no; the machine is working. We just can’t find the spot on the videotape [that we are looking for].” I ■ said, ‘Well, I’ll find it for you.” ...

[It] was the videotape of the defendant’s interview at the police station, and [the jurors] had the .videotape [positioned] in the middle of the [tape]. That’s where they were looking for [the interview:] in the middle of the videotape. Apparently, that’s where [the tape] was when they got it, so they thought [that that was] where the interview was — in the middle of the tape.

Defense Attorney: Was there any ...

The Court: Well, I searched around and looked. -I couldn’t find it anywhere in the middle of the tape, so I went and did the usual thing[: I] went back to the beginning of the tape, and that’s where it was.... So then I sent the [video machine] back into them, and they took it from there. So ...

Defense Attorney: Was there anything else on the video but ... what we’ve seen?
The Court: No, that’s the admitted exhibit.
Defense Attorney: Okay.
The Court: So that’s what occurred. And I presume [there are] no objections to that. That’s a ministerial thing — getting the exhibit [positioned] so they could find it.
Defense Attorney: No objection, Your Honor.

Judge Souter then summoned the jury to the courtroom to announce their verdict. The jury announced that they had acquitted Allen of first-degree murder but had convicted him of second-degree murder.

On appeal, Allen argues that Judge Souter violated his rights under the federal and state constitutions by having contact with the jury — or, more precisely, with one juror— without Allen and his attorney being present. In his brief, Allen asserts that “Judge Souter met with an individual juror privately outside the jury room[,] spoke to this juror about the evidence on the videotape[,] ... and permitted the playback of testimony to the jury in [Allen’s] absence.”

The first portion of this assertion is supported by the record: Judge Souter told the parties that he had spoken to an individual juror outside the jury room. But the record does not support the other two portions of Allen’s assertion. There is nothing in the record to support Allen’s claim that Judge Souter “spoke to the juror about the evidence on the videotape” — except in the limited sense of ascertaining what portion of the tape the jury wished to review. Further, there is no factual basis for Allen’s claim that Judge Souter permitted a playback of testimony in the absence of Allen and his attorney. The incident under discussion involved the jury’s effort to play a videotape that had been admitted into evidence as an exhibit. It is proper for a jury to play an audio or video exhibit during their deliberations.

Indeed, during her summation to the jury, Allen’s attorney told the jurors that Allen’s interviews with the police were important-evidence supporting his claim of self-defense, and she encouraged the jurors to play those tapes “whenever [and] however often you want”. Thus, the record does not support Allen’s claim that Judge Souter engaged in improper conduct.

Equally important, Judge Souter disclosed his contact with the juror to Allen and his attorney before the trial ended. Allen’s attorney had a chance to question the judge about the incident; she also had a chance to object to the judge’s action or to ask for voir dire of the juror involved. Instead, the defense attorney announced that she had no objection to the judge’s action.

When Allen’s attorney declared that she had no objection to what had occurred, she knew that the jury was about to announce its verdict. In other words, rather than investigating the matter further or requesting a mistrial, the defense attorney chose to go forward and allow the jury to return its verdict. By doing so, she waived any appellate objection to Judge Souter’s actions.

Allen’s claim that the jury instruction on self-defense precluded him from asserting that his fear of imminent danger arose from the actions of more than one person

As explained above, Allen defended the murder charge by asserting that he acted in self-defense. The jury was instructed that Allen was authorized to use force “upon another person” to the extent that Allen reasonably believed he was about to be subjected to “the use of unlawful force by the other”. The jury was also told that “[t]he law of self-defense is designed to [protect] one who is beset by an aggressor and confronted by a necessity not of his own making”.

Allen’s trial attorney did not object to these instructions. However, on appeal, Allen claims that these instructions constituted plain error. Allen argues that these instructions misled the jury because they refer to a defendant’s right to protect himself from “another person” — ie., a single aggressor. Allen claims that these instructions precluded him from arguing that he faced potential danger from two aggressors — ie., from La-bat and one of his female companions, Julie Yourell.

Because the defense attorney did not object to these jury instructions, Allen must show that these instructions constituted “plain error” — ie., that these instructions were so obviously wrong that any competent judge or attorney would have recognized the problem, and that the error in the instructions manifestly prejudiced the jury’s deliberations.

Allen relies on a decision of the Colorado Court of Appeals, People v. Cuevas, 740 P.2d 25 (Colo.App.1987), for the proposition that when a defendant faces potential menace from a group of attackers, the jury instructions on self-defense should direct the jurors to consider the total danger to the defendant from all potential assailants — and not just the danger posed by “the victim” (ie., the particular person whom the defendant ultimately hurts or kills) — when gauging the reasonableness of the defendant’s response. However, the Colorado court specifically stated that even though the typical Colorado instruction on self-defense refers only to “the victim”, that instruction “does not constitute plain error”.

Allen also relies on State v. Irons, 101 Wash.App. 544, 4 P.3d 174 (2000), in which the Washington Court of Appeals reversed a criminal conviction because of this same flaw — a self-defense instruction that directed • the jury to consider only the danger posed to the defendant by “the victim”, as opposed to the total danger posed by all potential assailants. But the defendant in Irons preserved the issue for appeal by asking the trial judge to clarify this point of law for the jurors.

The point of law that Allen raises is unexceptionable. When a defendant claims that a charged assault or homicide was in fact an act of self-defense prompted by the danger posed by a group of attackers, the defendant is entitled to have the jury assess the defendant’s actions in light of the total danger posed (or apparently posed) by the group, and not just the danger posed by the victim named in the indictment.

But Alaska’s pattern self-defense instructions do not refer to “the victim”. Rather, as demonstrated by the instructions in Allen’s ease, Alaska jury instructions on self-defense speak about a defendant’s right to use force “upon another person” to the extent that the defendant reasonably believed that they were about to be subjected to “the use of unlawful force by the other”. Because Alaska’s instructions do not focus on the “victim”, they do not create as blatant a danger of misinterpretation as the jury instructions that were criticized in the decisions from our sibling states.

It is perhaps theoretically possible that Alaska’s self-defense instructions might be misinterpreted in the way Allen suggests. But Allen did not object to these instructions, so he must show plain error. That is, for Allen to prevail on appeal, he must show more than a theoretical possibility of misinterpretation. Allen must show that the challenged jury instructions obviously and manifestly prejudiced the fairness of his trial. Here, they did not.

Allen’s attorney did in fact argue to the jury that Allen faced danger from more than one aggressor. She told the jurors that “[Julie] Yourell and [Devron] Labat ... were the first aggressorsf, and] Albert Allen feared for his life ... when he [was] confronted by Devron Labat and Julie Yourell”. A few minutes later, the defense attorney reiterated this theme, telling the jurors: “[You must] decide who was the initial aggressor. ... [W]e say [that it was] Devron Labat and, with him, Julie Yourell.”

In his rebuttal, the prosecutor did not argue that self-defense only applied to aggression from the victim or from any single person. Rather, the prosecutor argued that Allen had not acted in self-defense at all— that any danger to Allen was over when Allen decided to chase Labat and kill him.

The potential flaw in the jury instructions was a subtle one. Given the final arguments of the parties, we conclude that there is no reasonable possibility that the jury was misled concerning Allen’s right to argue that his actions were justified by the danger he faced from Labat and Yourell in combination. We therefore conclude that Allen has failed to show plain error.

Allen’s argument that factors employed to aggravate or mitigate a second-degree murder sentence must he proved by clear and convincing evidence rather than by a preponderance of the evidence

Normally, factual issues at sentencing are decided under the “preponderance of the evidence” standard of proof. That is, the sentencing judge decides whether the disputed factual assertion is more likely true than not. See AS 12.55.0259(i) and Brakes v. State, 796 P.2d 1368, 1372 n. 5 (Alaska App.1990). However, the legislature has declared that a higher standard of proof governs certain sentencing issues.

When the government asserts that a defendant’s prior felony conviction triggers a presumptive term (or triggers a greater presumptive term), the legislature has mandated that the government prove the conviction beyond a reasonable doubt. See AS 12.55.145(d). In Huf v. State, 675 P.2d 268, 273-74 (Alaska App.1984), we concluded that, by analogy to AS 12.55.145(d), the legislature intended to have this same burden of proof apply to the government’s proof of the other factual assertions that trigger a greater presumptive term under AS 12.55.125(c) — for example, possession of a firearm.

The legislature has also specified a higher standard of proof — proof by clear and convincing evidence — when the government or the defendant asserts under AS 12.55.165 that there are extraordinary circumstances that would justify the three-judge statewide sentencing panel in imposing a sentence outside the normal rules governing presumptive sentencing. This same “clear and convincing evidence” standard of proof applies to the aggravating and mitigating factors listed in AS 12.55.155(e)-(d) that authorize a sentencing judge to depart from the presumptive term established by the legislature for the defendant’s crime. See AS 12.55.155(f). In Buoy v. State, 818 P.2d 1165, 1167-68 (Alaska App.1991), this court concluded that, by analogy to AS 12.55.155(f), the government must meet the “clear and convincing evidence” standard when it alleges aggravating factors that will authorize a sentencing judge to exceed the Austin ceiling — i.e., authorize the judge to sentence a first felony offender to a term of imprisonment exceeding the presumptive term for a second felony offender convicted of the same offense. The Alaska Legislature has now codified the Buoy decision in AS 12.55.025® and AS 12.55.125(k)(2).

Finally, the legislature has mandated the “clear and convincing evidence” standard of proof when the government asks a sentencing court to impose a mandatory 99-year sentence on a first-degree murder defendant under AS 12.55.125(a)(3) by asserting that the defendant subjected the victim to substantial physical torture.

In this appeal, Allen argues that the “clear and convincing evidence” standard of proof should also apply to second-degree murder cases when the government relies on aggravating factors (or the defendant relies on mitigating factors) to argue that the sentencing judge should impose a sentence outside the 20- to 30-year benchmark range established in Page v. State.

Allen’s argument appears to be inconsistent with AS 12.55.025®, which declares that (with certain specified exceptions) “the preponderance of the evidence standard of proof applies to sentencing proceedings”. Moreover, Allen’s argument ignores the fact that aggravating and mitigating factors do not play their normal legal role in a second-degree murder sentencing.

The normal role of aggravators and mitigators is to expand the sentencing judge’s legal authority in cases governed by presumptive sentencing. Proof of aggrava-tors authorizes the judge to impose a sentence above the presumptive term, while proof of mitigators authorizes the judge to impose a sentence below the presumptive term.

But second-degree murder is not governed by presumptive sentencing. This means that, even without proof of aggravators or mitigators, a sentencing judge is authorized to impose any sentence within the 10- to 99-year range established by the legislature for this offense. See AS 12.55.125(b). True, our decision in Page restricted sentencing judges’ discretion by establishing a 20- to 30-year benchmark range. Nevertheless, a sentencing judge may impose a sentence outside this range for any good reason — not only upon proof of the aggravators and mitigators listed in AS 12.55.155(c)-(d).

It is true that in second-degree (and first-degree) murder senteneings, the parties often frame their arguments in terms of these statutory aggravating and mitigating factors. We have recognized and approved the practice of “[using] these factors as points of reference ... when [evaluating] how [a specific] offense should be viewed in comparison to a typical ... murder”. Nevertheless, a sentencing judge is not limited to the statutory aggravating and mitigating factors when deciding whether the circumstances of the defendant’s case call for a sentence outside the Page benchmark range. As we noted in Brown v. State,

There are few legal restrictions on the types of factors that a sentencing court can consider when assessing whether a particular sentence should fall outside the benchmark range [for second-degree murder]. As we stressed in Williams [v. State, 809 P.2d 931, 934 (Alaska App.1991)], “any sound reason may be relied on to differentiate one ease from another.”

973 P.2d 1158,1162 (Alaska App.1999).

Because aggravators and mitigators do not have the same legal significance at a murder sentencing, and because the legislature has recently codified its preference for the “preponderance of the evidence” standard of proof at sentencing, we reject Allen’s contention that aggravators and mitigators must not be considered by a judge at a murder sentencing unless these factors are proved by clear and convincing evidence.

We note that the “preponderance of the evidence” standard appears to favor neither the government nor the defendant. Rather, this standard of proof only expands the information (both favorable and unfavorable) that a sentencing judge can rely on. That is, the “preponderance of the evidence” standard allows a sentencing judge to take account of aggravating and mitigating circumstances even though the proponent of these circumstances may not be able to prove their point by clear and convincing evidence.

Allen’s claim that his sentence is excessive

Judge Souter sentenced Allen to serve 66 years in prison for the murder of Labat. On appeal, Allen argues that this sentence is too severe, given the fact that Labat repeatedly threatened to kill Allen and that Labat was the initial aggressor in the incident that led to the homicide.

At the sentencing hearing, Judge Souter noted that, at the time of the homicide, Allen had three prior convictions for assault — two felonies and one misdemeanor. He further noted that while Allen was incarcerated in connection with this murder charge, Allen assaulted a corrections officer and was convicted of misdemeanor assault.

Judge Souter agreed that Allen had been provoked by Labat. The judge noted that Labat had come to Allen’s residence and had made “dire threats” to Allen — -threats of what Labat would do to Allen if Allen continued his relationship with Labat’s girlfriend. But Judge Souter concluded that “although violence was threatened, no violence was offered”. The judge found that Labat was not armed when he came to Allen’s house, and he further found that Allen knew that Labat was unarmed. Judge Souter acknowledged that Allen had testified at trial that he believed Labat was armed with a handgun, but the judge declared that Allen’s testimony on this point had been “just perjury”. “This man never believed that the victim had a gun, or he never would have chased him with a knife.” Judge Souter found that Allen chased La-bat “[while Labat] was running away ... in ... totally frightened retreat — complete retreat, running headlong down the street, ... trying to avoid this defendant”. He found that Allen “pursued [Labat] over 200 feet down the street, and once or twice around a pickup truck, in order to stab him”. Judge Souter further found that, after Allen stabbed Labat, he “violently smashed [La-bat’s head] to the pavement ... [and] started stomping on the victim’s head. And then, after he did that, [Allen] kicked the victim’s body so violently that he lifted him up off the pavement”.

In sum, Judge Souter concluded that even though Labat offered Allen some provocation, Allen’s response was “completely out of proportion”. Allen “totally flew off the handle and became irrational and acted entirely outside the law” when he armed himself with a knife and chased Labat down the street. The judge found that Allen’s offense was among the most serious within the definition of second-degree murder because Allen intended to kill Labat. That is, the judge found that Allen was factually guilty of first-degree murder.

Given these findings concerning Allen’s offense and his history of assaultive conduct, Judge Souter was not clearly mistaken when he sentenced Allen to 66 years in prison.

Conclusion

The judgement of the superior court is AFFIRMED.

      . See Owens v. State, 613 P.2d 259, 261 (Alaska 1980) (a defendant should not be allowed to "take a gambler's risk and complain only if the cards [fall] the wrong way”); see also Turpin v. State, 890 P.2d 1128, 1130 (Alaska App.1995).

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

      . 703 P.2d 1175, 1178-79 (Alaska App.1985).

      . 615 P.2d 594, 603-04 (Alaska 1980).

      . See also Mustafoski v. State, 954 P.2d 1042, 1045-46 (Alaska App.1998) (testimony that the defendant was a drug dealer; no mistrial required); McPherson v. State, 800 P.2d 928, 929-930 (Alaska App.1990) (testimony that the defendant had sold marijuana to minors; no mistrial required); Srala v. Anchorage, 765 P.2d 103, 105-06 (Alaska App.1988) (testimony that the defendant asked the police to "give him a break” since they had never given him a break before; no mistrial required).

        .See Noah v. State, 887 P.2d 981, 983 (Alaska App.1995) (a trial judge’s decision to grant or deny a request for a mistrial is reviewed using the "abuse of discretion” standard).

      . See Owens v. State, 613 P.2d 259, 261 (Alaska 1980); Turpin v. State, 890 P.2d 1128, 1130 (Alaska App.1995) (a defendant should not be allowed to "take a gambler’s risk and complain only if the cards [fall] the wrong way").

      . See Aviation Associates, Ltd. v. TEMSCO Helicopters, Inc., 881 P.2d 1127, 1131 n. 7 (Alaska 1994) ("Plain error exists when a jury instruction obviously creates a high likelihood that the jury [followed] an erroneous theory resulting in a miscarriage of justice.”) (quoting Ollice v. Alyeska Pipeline Service Co., 659 P.2d 1182, 1185 (Alaska 1983)).

      . Cuevas, 740 P.2d at 27.

      . Id.

      . Irons, 4 P.3d at 182-83.

      . Id. at 177.

      . See Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981).

      . 657 P.2d 850, 855 (Alaska App.1983).

      .See AS 12.55.155(a).

      . See AS 12.55.125(b); Gustafson v. State, 854 P.2d 751, 763 (Alaska App.1993); Weitz v. State, 794 P.2d 952, 957 n. 3 (Alaska App.1990).

      . Sakeagak v. State, 952 P.2d 278, 284 (Alaska App.1998).

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