RICHARD I. MILLER, Appellant,
STATE OF ALASKA, Appellee.
from the Superior Court, Third Judicial District, Trial Court
Nos. 3KN-08-568 CR & 3KN-08-740 CR Kenai, Carl Bauman,
Appearances: Elizabeth D. Friedman, Assistant Public
Advocate, Appeals and Statewide Defense Section, and Richard
Allen, Public Advocate, Anchorage, for the Appellant.
A. Ringsmuth, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Craig W. Richards, Attorney General,
Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,
District Court Judge. [*]
I. Miller was found guilty of more than a hundred counts of
possessing child pornography, as well as two counts of
soliciting other people to tamper with evidence. (Following
his arrest, Miller telephoned certain individuals and asked
them to delete various materials from his home and business
computers, or to remove the computers themselves.)
appeal, Miller contends that the trial judge committed error
by allowing the prosecutor to introduce evidence that Miller
possessed a book entitled The Man They Called a
Monster - an academic study of Clarence Osborne, an
Australian man who advocated sexual relations between adults
and children, and who professed to have engaged in sex with
hundreds of boys. For the reasons explained in this opinion,
we conclude that any error in the trial judge's ruling
also argues that the trial judge committed plain error by
allowing the prosecutor, during the State's summation to
the jury, to refer to the fact that Miller possessed
additional child pornography for which he was not charged.
For the reasons explained in this opinion, we conclude that
the prosecutor's reference to this uncharged pornography
did not constitute plain error.
asserts that the superior court committed error by assessing
a separate "police-training" surcharge for each of
Miller's 116 convictions. We agree with Miller, and we
direct the superior court to impose only a single surcharge.
Miller objects to various assertions in his pre-sentence
report. For the reasons explained here, we direct the
superior court to reconsider Miller's objections to the
evidence that Miller possessed a copy of The Man They Called
to Miller's trial, the judge issued a protective order
that barred the State from introducing evidence that Miller
possessed literature dealing with pedophilia unless Miller
took the stand and disclaimed knowledge of the pornographic
images found at his home and business.
trial, Miller did take the stand and denied possessing the
pornographic images. After Miller gave this testimony, the
trial judge concluded that the probative force of
Miller's possession of literature dealing with pedophilia
now outweighed the potential for unfair prejudice posed by
this evidence. However, to minimize the potential for unfair
prejudice, the judge limited the prosecutor to questioning
Miller about only two works: an article entitled
Kolya and a book entitled The Man They Called a
Monster. Because the prosecutor could not locate a copy
of Kolya, the prosecutor only cross-examined Miller
about The Man They Called a Monster.
book, The Man They Called a Monster, is not a work
of pornography. Rather, it was written by an academic; it is
a study of an Australian man who advocated sexual relations
between adults and children, and who professed to have
engaged in sex with hundreds of boys.
prosecutor suggested that Miller's possession of this
book demonstrated Miller's sexual interest in young boys,
while Miller asserted that he possessed the book because it
was a detailed study of a sociological problem.
judge's decision to allow the prosecutor to cross-examine
Miller about this book is questionable. We discussed a
related issue in Linehan v. State, 224 P.3d 126, 148
(Alaska App. 2010), where we explained that courts are
normally quite cautious about allowing the government to
introduce evidence of a defendant's tastes in literature
or cinema when this evidence is offered to prove that the
defendant likely committed the types of crimes or misdeeds
portrayed in those books or movies.
the book that Miller possessed was not a work of child
pornography. It was an academic examination of a man who
advocated and engaged in pedophilia. The fact that Miller
possessed a copy of this book had only marginal probative
value on the question of whether Miller himself would engage
in such criminal activities.
our discussion of the related point in Linehan:
"[M]any law-abiding people are drawn to characters in
literature or in the cinema who are villainous or roguish ...
even though they would not dream of engaging in the same
crimes or misdeeds." 224 P.3d at 148.)
we conclude that any error was harmless. It is true that,
during summation, the prosecutor argued briefly that
Miller's possession of this book showed that he was
sexually interested in children. But the State's case
rested primarily on the dozens of pornographic images found
on the computer hard drive in Miller's locker at work,
and on the child pornographic CDs that were found in
Miller's dresser, and on Miller's telephone calls
from the jail asking people to delete computer files or
remove computers from his home and business.
the other evidence in this case, we conclude that the
admission of evidence that Miller possessed a copy of The
Man They Called a Monster did not appreciably affect the
jury's decision. Accordingly, even if it was error to