STEPHEN W. ALVARADO, Appellant,
STATE OF ALASKA, Appellee.
from the Superior Court Trial Court No. 3DI-11-334 CR Third
Judicial District, Dillingham, Steve W. Cole, Judge.
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 [*]
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. 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.
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.
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
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.
reasons explained here, we conclude that the State's
concessions are well-founded. 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
background and prior proceedings
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
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.
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).
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.
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
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.
this instruction was improper for the reasons explained in
this opinion, A1varado's attorney did not object to this
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.
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
argument that it was structural error for the trial court to
take conclusive judicial notice of A1varado's date of
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
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."
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.
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. State a decision from 1989,
Fielding v. State,  a decision from 1992, and Rae
v. State,  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
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. 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.
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 ...