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PETERSEN v. STATE12/20/1996
s that the jury was bound to accept: any facts to which the parties stipulated, and any other facts that the judge expressly told the jurors they were required by law to accept.
The parties did not stipulate to the facts surrounding Petersen's probation. (It was this lack of a stipulation that led the court to take judicial notice.) And even though, during trial, the judge announced that she was taking judicial notice of the facts surrounding Petersen's probation, the judge never instructed the jurors that judicially noticed facts were the type of facts that "the law require [them] to accept".
Lawyers familiar with the concept of judicial notice, and familiar with the role judicial notice plays in a civil trial, might interpret the phrase "facts . . . the law requires [the jury] to accept" as a reference to judicially noticed facts. However, this connection would not be apparent to a jury of lay people. Moreover, the record in Petersen's case indicates that Petersen's attorney did not draw this connection. Even though the defense attorney vociferously challenged the State's efforts to introduce evidence of Petersen's status as a probationer and Petersen's conditions of probation, and even
though he challenged the court's decision to take judicial notice of these facts, he did not object to Instruction 23. While one could argue that Instruction 23 was potentially subject to erroneous construction, there was no obvious error in the instruction.
Further, the potential for error was all but erased by an incident that occurred during jury deliberations. During deliberations, the jurors asked the court to provide them with a copy of the district court order of April 7, 1993 that placed Petersen on probation. After hearing the positions of the parties, Superior Court Judge Peter A. Michalski (acting in the absence of the original trial judge) told the jurors that the order they sought was not part of the evidence. Judge Michalski then re-quoted the text of the judicial notice concerning Petersen's probation, and he specifically directed the jurors to consult Instruction 4. As noted above, Instruction 4 correctly informed the jurors that it was "the jury's exclusive duty to decide facts of this case" based on the evidence, and that judicially noticed facts were simply one portion of the evidence that the jury could consider. Given the wording of the original instructions, and given Judge Michalski's answer to the jurors, Petersen has not shown that the potentially ambiguous wording of Instruction 23 constituted an obvious or substantially prejudicial error. Massey v. State, 771 P.2d 448, 453 (Alaska App. 1989).
For these reasons, we affirm Petersen's conviction.
Petersen's Sentence Appeal
Petersen's crime, first-degree stalking, is a class C felony with a maximum penalty of 5 years' imprisonment. AS 11.41.260(c); AS 12.55.125(e). Superior Court Judge Karen L. Hunt sentenced Petersen to 5 years with 2 years suspended (3 years to serve). Petersen contends that this sentence is excessive.
Petersen was a first felony offender. Under AS 12.55.125(k) and Austin v. State, 627 P.2d 657 (Alaska App. 1981), as construed in Brezenoff v. State, 658 P.2d 1359, 1362 (Alaska App. 1983), Petersen could not receive 3 years to serve unless the sentencing judge found one or more of the aggravating factors listed in AS 12.55.155(c) (or unless the judge found extraordinary circumstances under AS 12.55.165). Judge Hunt found two aggravating factors: (c)(9) — that Petersen knew that his offense involved more than one victim, and (c)(21) — that Petersen had a history of repeated criminal violations similar in nature to his present offense.
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