David W. GUTHRIE II, Appellant,
STATE of Alaska, Appellee.
Sharon B. Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Nicholas Polasky, Assistant District Attorney, and Stephen R. West, District Attorney, Ketchikan, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before : COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
In May 2008, David W. Guthrie II was charged with fourth-degree assault, and he was released on bail pending his trial in the Ketchikan district court. While on bail during the months of May, June, July, and August, Guthrie appeared in court for several pre-trial proceedings-including a proceeding on August 1st, at which time the district court scheduled Guthrie's trial for August 20th, with a pre-trial " calendar call" scheduled for August 15th.
(A " calendar call" is a court proceeding at which the parties apprise the court either (1) that they are ready for the scheduled trial, or (2) that the trial will not be necessary because the case has been resolved, or (3) that the trial must be rescheduled for some reason.)
Guthrie did not come to court for the August 15th calendar call, and District Court Judge Kevin G. Miller issued a bench warrant for Guthrie's arrest. However, this warrant was apparently never served. Six days later, on August 21st, Guthrie appeared in court with his attorney and asked Judge Miller to quash the warrant. The prosecutor did not oppose this request. Judge Miller quashed the warrant, and the judge apparently allowed Guthrie to remain at liberty under the same bail release conditions as Before , although he advised Guthrie to keep in better contact with his attorney.
Based on this incident, the State filed an additional charge against Guthrie: misdemeanor failure to appear, AS 12.30.060(2). This statute makes it a crime for a misdemeanor defendant to " knowingly fail[ ] to appear Before a court or judicial officer as required" . The State charged that Guthrie knowingly failed to appear in the district court for his calendar call on August 15th.
After the State indicated its intention to consolidate the trial of the fourth-degree assault and failure to appear charges, Guthrie asked the district court to sever the charges. The district court denied this request.
Guthrie went to trial in November 2008, and the jury convicted him of both offenses.
In this appeal, Guthrie argues that the district court should have granted his request for separate trials of the two charges. In addition, Guthrie argues that the evidence presented at his trial is legally insufficient to support his conviction for failure to appear.
We agree with Guthrie that the evidence is not sufficient to support his conviction for failure to appear. The State's evidence showed that Guthrie was present in court when Judge Miller scheduled the calendar call for August 15, 2008, and the State's
evidence showed that Guthrie did not appear in court for that calendar call, but the State presented no evidence that Guthrie was required to attend the calendar call. Thus, the evidence was insufficient to prove that Guthrie knowingly failed to appear in court " as required" .
With regard to the remaining issue on appeal, we conclude that we need not decide whether it was proper to join the assault charge and the failure to appear charge in a single trial. Rather, we conclude that even if the joinder of the two charges was improper, there is no reason to believe that this error affected the jury's verdict on the assault charge. We therefore affirm this portion of the district court's judgement.
Why we conclude that the evidence presented at Guthrie's trial is not sufficient to support his conviction for failure to appear
As we explained above, the failure to appear statute, AS 12.30.060, defines this offense as " knowingly fail[ing] to appear Before a court or judicial officer as required" . The State alleged that Guthrie knowingly failed to appear for his calendar call on August 15th. To prove this charge, the State had to present evidence (1) that Guthrie was required to attend the calendar call on August 15th, and (2) that he made a deliberate, conscious decision not to attend. See Moffitt v. State, 207 P.3d 593, 595 (Alaska App.2009).
Even assuming that the State's evidence was sufficient to establish the second element (that Guthrie made a deliberate, conscious decision not to attend the calendar call), the State failed to present any evidence on the first element (that Guthrie was required to attend the calendar call in the first place).
The State's evidence relating to the failure to appear charge was cursory. The prosecutor presented the testimony of the Ketchikan Clerk of Court, who had no personal knowledge of the events in Guthrie's case, but who instead described the contents of the log notes kept by an in-court clerk during the district court proceedings of August 1st and August 15th. (The log notes themselves were not introduced into evidence.)
According to the court clerk's description of the log notes, (1) Guthrie was present in court on August 1st when Judge Miller scheduled the calendar call in Guthrie's case for August 15th, and (2) Guthrie did not come to court for this calendar call. Here is the relevant portion of the clerk's testimony on direct examination:
Prosecutor: Looking ... at Plaintiff's [Exhibit] 1-do you know what that document is?
Clerk: This is a certified copy of a " log note" .... [A] log note is [a document] that's created by the in-court clerks.... It is [the clerk's] interpretation of what ...