Wike v. State

623 P.2d 356, 1981 Alas. App. LEXIS 173

• Court: Court of Appeals of Alaska
• Decided: February 13, 1981
• Docket: File 5185
• Status: Published

Opinions

OPINION

COATS, Judge.

Larry Wike, owner of the Stampede Saloon in Fairbanks, was convicted by a Fairbanks district court jury of selling liquor to a person under nineteen years of age, in violation of former AS 04.15.020(a).¹ On September 29,1978, Billie Jean Johnson, the Stampede bartender, sold two beers to a young soldier, Michael DeSorbo. Johnson testified that she did not ask DeSorbo for proof of age on this occasion, because when she had asked him on earlier occasions, he had produced a military photo identification card indicating he was of legal age. However, when a Fairbanks police officer checking the bar asked DeSorbo for identification, DeSorbo apparently said he was under age or had identification showing he was under age.² The officer arrested DeSorbo for being a minor on premises where alcoholic beverages are sold. On November 30, 1978 DeSorbo entered a plea of guilty to that charge.³

At Wike’s trial the state introduced a copy of DeSorbo’s judgment of conviction for minor on premises to prove that DeSor-bo was not nineteen as of September 29, 1978.⁴ The district court admitted this evidence over Wike’s strenuous objections.⁵

Wike appealed his conviction to the superior court. The superior court affirmed his conviction. He has appealed again, raising two major claims: first, that the district court erred in admitting DeSorbo’s conviction as evidence of his age; and second, that the court erred in instructing the jury that the bartender’s good faith reliance on DeSorbo’s false military identification card did not constitute a defense to the charge.

We have concluded that the district court should not have allowed the state to prove that DeSorbo was under nineteen by introducing his conviction for minor on premises. The United States Supreme Court originally condemned proof of a material element of a crime by introduction of another person’s conviction for a related crime in Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899). Kirby was charged with receiving stolen property of the United States — in that case postage stamps. At Kirby’s trial the government proved that the postage stamps possessed by Kirby were stolen by introducing convictions of Wallace, Baxter, and King⁶ to show that they had been found guilty of stealing the postage stamps. Kirby was convicted and appealed; the United States Supreme Court reversed. The Court indicated that Kirby had not been able to participate or be represented in the prosecutions of Wallace, Baxter, and King. The Court reasoned that proving the stamps were stolen by introducing the convictions violated Kirby’s right to confront the witnesses against him under the Sixth Amendment to the United States Constitution.⁷

The Federal Rules of Evidence follow the Kirby reasoning. The Federal Rules provide for an exception to the hearsay rule for the admission of a final judgment of guilt of a felony “but not including, when offered by the Government for purposes other than impeachment, judgments against persons other than the accused.” Fed.R.Evid. 803(22).⁸ The Advisory Committee notes to the rule explain this exception:

While these rules do not in general purport to resolve constitutional issues, they have in general been drafted with a view to avoiding collision with constitutional principles. Consequently the exception does not include evidence of the conviction of a third person, offered against the accused in a criminal prosecution to prove any fact essential to sustain the judgment of conviction. A contrary position would seem clearly to violate the right of confrontation.

We find the reasoning of Kirby and the provisions of the Federal Rules of Evidence persuasive and rule that it was error to prove DeSorbo’s age, a material element of the crime for which Wike was charged, by admitting DeSorbo’s conviction in evidence.⁹

Since we are reversing Wike’s conviction based upon our disposition of his first point on appeal, it is unnecessary for us to reach his second point on appeal.

The judgment of conviction is REVERSED.

SINGLETON, J., concurs in the result.

1 . AS 04.15.020 was repealed in 1980. Similar conduct is now prohibited by AS 04.16.052. AS 04.15.020(a) read as follows:

(a) Sale to minors or intoxicated persons. It is unlawful to give, barter or sell any intoxicating liquors, including beer and wine, to a person under the age of 19 years or to an intoxicated person, and it is unlawful for a licensee to permit the giving, selling, bartering or drinking of any intoxicating liquor within the premises covered by a license to or by either of the forbidden classes, nor shall the licensee permit the drinking of hard or distilled liquors by any person upon the premises covered by his license, unless it is permitted under the classification of his license.

2 . The testimony of the police officer was vague on this point.

3 . DeSorbo pleaded guilty to a violation of AS 04.15.020(d), repealed in 1980 and now covered by AS 04.16.049. Wike contends that this charge does not apply to minors present on premises where alcoholic beverages are sold. Because of our disposition of this case we do not need to decide if Wike is correct that De-Sorbo was mischarged or if Wike could attack the use of DeSorbo’s conviction assuming De-Sorbo was mischarged. AS 04.15.020(d) read in part as follows:

(d) Presence of minors on premises. It is unlawful to permit a person under the age of 19 years to enter or remain upon licensed premises unless he is accompanied by his parent, guardian or spouse who has attained the age of 19 years....

4 . On November 30, 1978, when he entered his guilty plea, DeSorbo stated that he would be nineteen on December 8, 1978. This statement was not introduced at Wike’s trial.

5 . The state issued a subpoena for DeSorbo, but prior to trial he was apparently court martialed and sentenced to serve his term at Fort Richardson, near Anchorage. The record does not reflect that the state made any effort to secure DeSorbo as a witness other than issuing a subpoena. The subpoena was returned unserved.

6 . Wallace and Baxter pled guilty and King was found guilty at a trial.

7 . The Sixth Amendment to the United States Constitution reads as follows:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel for his defense.

8 . The Alaska Rules of Evidence became effective on August 1, 1979, and were therefore not in effect at the time this case was tried. The Alaska Rules of Evidence do not have a section similar to Fed.R.Evid. 803(22). See Alaska R.Evid. Commentary 803 at 246-247.

9 . Cf. Vandetti v. United States, 623 F.2d 1144, 1147-48 (6th Cir. 1980).