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PETERSEN v. STATE12/20/1996
bstantial and unjustifiable risk that his conduct would cause R.H. to fear injury or death. Again, Petersen's pre-May 1993 conduct was relevant to prove this element of the offense.
Petersen argues that these uses of the evidence do not fit neatly into any of the categories listed in Alaska Evidence Rule 404(b)(1) ("motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident"). We find the challenged evidence relevant to plan and knowledge. However, even if Petersen were right, this would not bar admission of the evidence. The legislature has declared that Rule 404(b)'s list of proper purposes for other crimes evidence is not intended to be exclusive. See ch. 79, § 1(c) SLA 1991 ("The amendment of [Evidence] Rule 404(b)(1) . . . made by sec. 4 of this Act changes the [rule] to make it one of inclusion and to establish that the nonpropensity purposes listed in the rule are not inclusive and that evidence can be admitted if it is relevant to a purpose not listed in the rule.") Even before the legislature amended the rule, the Alaska Supreme Court upheld the admission of evidence of a defendant's other crimes when this evidence was needed to explain the defendant's relationship with another person. Braham v. State, 571 P.2d 631, 641 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S.Ct. 2246, 56 L.Ed.2d 410 (1978).
We therefore conclude that evidence of the pre-May 1993 contacts between Petersen and R.H. was admissible for non-propensity purposes. We also agree with the trial judge that the evidence was more probative than prejudicial. Petersen argued that most of his contacts with R.H. had been consensual and that R.H. was a manipulative person who was simply annoyed with Petersen, not fearful of him. In this context, evidence of the pre-May 1993 contacts was highly probative.
Petersen next argues that he could not be convicted of first-degree stalking under AS 11.41.260(a)(2) because the condition of probation that barred him from contacting R.H. was entered on April 7, 1993 — before the effective date of the stalking statutes (May 28, 1993). Petersen contends that, even if he committed second-degree (misdemeanor) stalking, it would be an unlawful retroactive application of the first-degree stalking statute if the State were permitted to rely on the condition of probation from his April 1993 assault conviction to enhance his offense to first-degree (felony) stalking.
The Alaska Supreme Court addressed a similar contention in Danks v. State, 619 P.2d 720 (Alaska 1980). The issue in Danks was whether a statute that enacted increased penalties for repeat drunk driving offenders
could lawfully apply to a defendant who committed drunk driving after the new law came into effect but whose prior offenses were committed before the passage of the new law. The defendant in Danks argued that sentencing him to the increased penalties of the new law would amount to an unconstitutional retroactive application of the law. The supreme court disagreed. Quoting Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683, 1687 (1948), the court stated:
he fact that one of the convictions that entered into the [defendant's sentencing] calculations . . . occurred before the Act was passed [does not make] the Act invalidly retroactive[.] The [defendant's] sentence as a [repeat] offender or habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one.
Danks, 619 P.2d at 722. This is the accepted view on this matter, both as to i
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