Alvarado v. State, 022219 AKCA, A-12105

• Opinion Judge: ALLARD, Judge
• Party Name: STEPHEN W. ALVARADO, Appellant, v. STATE OF ALASKA, Appellee.
• Attorney: Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
• Judge Panel: Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge Judge MANNHEIMER, concurring.
• Case Date: February 22, 2019
• Court: Alaska Court of Appeals

STEPHEN W. ALVARADO, Appellant,

v.

STATE OF ALASKA, Appellee.

No. A-12105

Court of Appeals of Alaska

February 22, 2019

Appeal from the Superior Court Trial Court No. 3DI-11-334 CR Third Judicial District, Dillingham, Steve W. Cole, Judge.

Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

Timothy W. Terrell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge ^[*]

OPINION

ALLARD, Judge

Following a jury trial, Stephen W. Alvarado was convicted of four counts of first-degree sexual abuse of a minor based on evidence that he sexually abused his six-year-old daughter, S.S., on two separate occasions.¹ At sentencing, the court imposed a composite sentence of 57 years and 6 months to serve. Alvarado challenges both his convictions and his sentence, raising four claims of error.

Alvarado argues first that the superior court erred when it took judicial notice of Alvarado's date of birth and then instructed the jury that it was required to accept this fact as "proven." Alvarado contends that by taking conclusive judicial notice of his date of birth, the trial court violated Alvarado's constitutional right to a jury trial on one of the essential elements of the charged offenses. Alvarado further contends that this error is structural error that requires automatic reversal of his convictions. For the reasons explained here, we conclude that the trial court's action, which Alvarado's attorney consented to, was not reversible error.

Alvarado argues next that the trial court committed plain error when it failed to sua sponte issue a limiting instruction after the victim's out-of-court statement was admitted under the first-complaint doctrine. We find no merit to this claim.

Alvarado's last two claims of error relate to his sentencing. Alvarado argues that the trial court erred when it refused to merge the two sets of first-degree sexual abuse convictions that were based on the same underlying acts of fellatio. The State concedes that these convictions should have merged. Alvarado also argues that the trial court erred when it failed to order the Department of Corrections to produce a corrected copy of his presentence report. The State also concedes error on this claim.

For the reasons explained here, we conclude that the State's concessions are well-founded.² Accordingly, we remand Alvarado's case to the superior court for merger of the challenged convictions, a resentencing, and correction of the presentence report. We otherwise affirm the judgment of the superior court.

Factual background and prior proceedings

In August 2011, S.A. (Alvarado's seven-year-old son), and S.S. (Alvarado's six-year-old daughter) reported to their cousin that their father (Alvarado) had been forcing both of them to "suck his wiener." The cousin told other members of the family, who reported these accusations to the police.

S .A. almost immediately recanted this accusation. S.S. was interviewed by a caseworker from the Office of Children's Services. During this interview, S.S. recounted three different incidents of fellatio - two incidents in the trailer next to the family home and one incident in the bedroom in the house.

Based on S. S.' s interview, Alvarado was indicted on nine felony counts - three separate counts for each alleged incident. For each alleged act of fellatio, Alvarado faced the following three charges: (1) first-degree sexual abuse of a minor under AS 11.41.434(a)(1) (sexual penetration of a minor under thirteen years old), (2) first-degree sexual abuse of a minor under AS 11.41434(a)(2) (sexual penetration of a child by a parent), and (3) incest under AS 1141450(a)(1) (sexual penetration of a descendant).

All three of these criminal offenses required the State to prove that Alvarado was over a certain age at the time he committed the offenses. Alaska Statute11.41.434(a)(1) required the State to prove that Alvarado was over sixteen years old; AS 11.41.434(a)(2) and AS 11.41.450(a)(1) required the State to prove that Alvarado was over eighteen years old.

A1varado's age was not a contested element at trial: Alvarado was thirty-nine years old at the time of trial and thirty-six years old at the time of the alleged abuse. It was also undisputed that Alvarado was the natural father of S.S., who was six years old at the time of the alleged abuse. In order to have been under the threshold age, Alvarado would had to have fathered S.S. when he was between ten and twelve years old.

Near the end of A1varado's trial, the prosecutor noted that he was required to prove that Alvarado was over sixteen and eighteen years old at the time of the alleged incidents. The prosecutor also noted that there did not appear to be any dispute regarding A1varado's age. The prosecutor therefore requested that the trial court take "judicial notice" of A1varado's date of birth, which was listed on the indictment. The trial court agreed that it could take "judicial notice" of this fact, and the trial court asked the defense attorney "Is that fine?" The defense attorney replied, "Yep." The trial court subsequently instructed the jury as follows: I'm taking judicial notice so that it does not need to be proven that Stephen A1varado's, the defendant's, date of birth is February 2, 1975. Because that is judicial notice, you shall take that as a proven fact that the defendant was born February 2, 1975. That's not an issue.

Although this instruction was improper for the reasons explained in this opinion, A1varado's attorney did not object to this instruction.

Following deliberations, the jury convicted Alvarado of the charges relating to two of the incidents of fellatio that S.S. described in her trial testimony. The jury acquitted Alvarado of the charges relating to the third incident, which S.S. could not recall at trial.

At sentencing, the parties agreed that the incest convictions for each incident should merge with the corresponding conviction for AS 11.41.434(a)(2) (sexual penetration by a parent). However, the prosecutor argued that A1varado's convictions under AS 11.41.434(a)(1) (sexual penetration of a minor under 13 years old) involved "different societal interests" and therefore required separate convictions. The trial court agreed. The trial court therefore entered two first-degree sexual abuse of a minor convictions for each act of fellatio - for a total of four convictions. The court then imposed a composite sentence of 57 years and 6 months to serve.

This appeal followed.

A1varado's argument that it was structural error for the trial court to take conclusive judicial notice of A1varado's date of birth

Alaska Evidence Rule 203(c) requires trial courts to treat judicially noticed facts in criminal cases differently from judicially noticed facts in civil cases. The rule provides, in pertinent part: In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but it is not required to, accept as conclusive any fact judicially noticed.

As the Commentary to Evidence Rule 203(c) explains, "the rule opts for the greater protection of the accused's right to a jury trial afforded by the limited instruction that the jury may, but is not required to, accept as conclusive any fact judicially noticed."

On appeal, both parties agree that the trial court violated Evidence Rule 203(c) when it instructed the jury that they were required to take the judicially noticed date of birth as a "proven fact." The parties disagree, however, regarding the effect of this error and whether it is amenable to a harmlessness review.

Alvarado takes a bright-line approach. According to A1varado, any conclusive judicial notice of a fact relevant to an element constitutes a violation of the defendant's right to a jury trial and requires automatic reversal of the defendant's conviction. In support of this position, Alvarado relies on three prior decisions of this Court: Smallwood v. State³ a decision from 1989, Fielding v. State, ⁴ a decision from 1992, and Rae v. State, ⁵ a decision from 1994. In all three of these cases, trial judges erroneously took conclusive judicial notice of a factual aspect of the State's proof. And in all three cases, this Court held that the judge's error required automatic reversal, "without regard either to whether there was an objection from the defense, or to whether the defendant suffered any prejudice other than having had his guilt adjudged by the wrong entity."⁶

Alvarado argues that these three cases dictate the result in his case. We disagree for a number of reasons. First, Alvarado's case is distinguishable on its facts. In Fielding, the defendant directly objected to the judge taking conclusive judicial notice of an element of the charged offense.⁷ In Smallwood and Rae, the defendant failed to object to the court taking conclusive judicial notice of an element, but the element was never directly conceded by the defendant.⁸

Here, in contrast, the record shows that the defense attorney did more than just fail to object to the court's conclusive judicial notice instruction. Instead, the defense attorney affirmatively agreed that the date of birth on the indictment was correct and that this fact could be "judicially noticed" to the jury. Courts in other jurisdictions have refused to apply structural error under circumstances where the error is affirmatively waived by the defendant.⁹ We find these decisions persuasive, particularly in the circumstances...