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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


ALVIN E. WASSILLIE,
                                                      Court of Appeals No. A-11080
                            Appellant,               Trial Court No. 3AN-10-1901 CR

                     v.
                                                              O P I N I O N
STATE OF ALASKA,

                            Appellee.                  No. 2490 — February 5, 2016


              Appeal from the Superior Court, Third Judicial District,
              Anchorage, Michael L. Wolverton, Judge.

              Appearances: Josie Garton, Assistant Public Defender, and
              Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
              Diane L. Wendlandt, Assistant Attorney General, Office of
              Special Prosecutions and Appeals, Anchorage, and Michael C.
              Geraghty, Attorney General, Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,
              District Court Judge. *

              Judge MANNHEIMER.


              Alvin E. Wassillie was serving a felony sentence at a halfway house in
Anchorage when he walked away from the facility without authorization. A jury


   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
convicted him of escape in second degree. 1 On appeal, Wassillie asserts the superior
court should have dismissed the indictment against him because the State presented
inadmissible hearsay to the grand jury. Wassillie also argues the superior court erred by
allowing the State to later amend this indictment.
               With regard to Wassillie’s hearsay argument, we conclude that the hearsay
Wassillie complains of was properly admitted because it fell within the business records
exception to the hearsay rule. And with regard to the amendment of the indictment,
Wassillie did not object when explicitly given the opportunity, and we find no plain
error.


         Underlying facts


               Wassillie was in the custody of the Department of Corrections, serving a
sentence for a felony conviction. In early 2010, the Department placed Wassillie on pre­
release furlough status, and they transferred him to the Parkview Center — a halfway
house run by a private corporation under contract with the Department.
               On February 19, 2010, Wassillie left the Parkview Center on a pass for the
purpose of searching for a job. He returned a few hours later.
               Around the time of Wassillie’s return, members of the Parkview Center
staff were notified that someone had brought vodka into the building (in violation of the
facility’s rules). After an investigation, the staff concluded that Wassillie had tossed the
vodka into the building through an open window. One of the staff contacted Wassillie
and told him to wait in the lobby. This staff member then called the Department of
Corrections to have an officer come and take Wassillie to jail.



   1
         AS 11.56.310(a)(1)(B).

                                           –2–                                         2490

              But before the corrections officer arrived, one of the other Parkview
inmates notified the staff that Wassillie had left the building. Staff members checked
Wassillie’s room, they paged him twice, they looked throughout the building, and they
conducted a head count of the residents — but they were unable to locate Wassillie. By
examining a recording made by a security camera, they discovered that Wassillie had
walked out of the building through the front door.
              The police located and arrested Wassillie later that night, approximately
three miles from the Parkview Center.
              Wassillie was initially indicted for second-degree escape as that crime was
defined by the pre-2012 version of AS 11.56.310(a)(1)(A) — that is, under the theory
that Wassillie had unlawfully removed himself from a correctional facility while under
official detention. The jury at Wassillie’s first trial was unable to reach a verdict on this
charge, and the court declared a mistrial.
              After his first trial, Wassillie filed a motion to dismiss the indictment on two
grounds: first, that the State had presented inadmissible hearsay evidence to the grand
jury, and second, that the Parkview Center did not qualify as a “correctional facility”.
The superior court rejected both of these arguments.
              Nevertheless, prior to Wassillie’s second trial, the State filed a motion to
amend the indictment — by dropping the “correctional facility” theory of prosecution
and instead charging Wassillie with second-degree escape under the clause of the statute
that forbade removing oneself “from official detention for a felony”. 2 When the superior
court asked Wassillie’s attorney for his position on the State’s motion, the defense
attorney did not oppose it, so the superior court amended the indictment as the State
requested.


   2
       AS 11.56.310(a)(1)(B).

                                             –3–                                         2490

                At Wassillie’s second trial, the jury found Wassillie guilty of second-degree
escape under this amended theory.
                Wassillie now appeals his conviction.


       The State did not introduce inadmissible hearsay at the grand jury


                Wassillie argues that the State relied on inadmissible hearsay testimony to
establish that he left the Parkview Center without permission.
                The State presented two witnesses to the grand jury: a probation officer
named Chris Lyou, and the director of the Parkview Center, Robert Graber.
                Lyou testified that Wassillie was serving a sentence for a felony offense,
and that the Department of Corrections had placed him at a halfway house. Graber
testified that this halfway house was the Parkview Center.
                Graber also testified about Wassillie’s unauthorized departure from the
Parkview Center. Graber explained that the Parkview staff conducts a physical check
of the Center’s inmates every hour, to make sure that all the inmates who are supposed
to be in the building are in fact present. If the staff learns that a person may be missing,
they lock down the building and they conduct two head counts by physically searching
the building.
                Graber explained that it is the business practice of the Parkview Center to
create an “incident report” whenever a person leaves the Center without authorization.
Through Graber, the prosecutor introduced the incident report that documented
Wassillie’s unauthorized departure from the Parkview Center. This report was written
by Parkview Center staff member Eric Dulany, and it described the actions that the staff
took after Dulany was notified that Wassillie was missing.



                                             –4–                                        2490

              Dulany did not testify at the grand jury. Instead, relying on this incident
report, Graber described how the Parkview staff responded when they were informed
that Wassillie had left the Center without permission, and how the staff ultimately
determined that Wassillie had in fact walked away.
              On appeal Wassillie argues this incident report was inadmissible hearsay
because it was introduced for the truth of the matters asserted in it, and because the
author of the report did not testify at the grand jury. But given Graber’s testimony about
the business practices of the Parkview Center, the incident report was clearly admissible
under Alaska Evidence Rule 803(6) — the business records exception to the hearsay
rule.
              Evidence Rule 803(6) creates a hearsay exception for any “memorandum,
report, record, or data compilation ... in any form” that describes “acts, events,
conditions, opinions, or diagnoses” if three conditions are met:
        •	 The record (or memorandum or report or data compilation) was made at or
           near the time of the occurrence;
        •	 The record was made by, or was based on information transmitted by, a person
           with knowledge acquired of a regularly conducted activity of that business
           entity; and
        •	 It was the regular practice of that business entity to make and keep that kind
           of record.
              Evidence Rule 803(6) states that these foundational elements can be
established “by the testimony of the [records] custodian or other qualified witness”. In
Wassillie’s case, Graber (the director of the Parkview Center) testified about the business
practices that the Center followed whenever the staff received a report that an inmate
might be missing. One of these business practices was to create an incident report
whenever an inmate did in fact leave the Center without permission.

                                           – 5 –	                                     2490

              (We note that the Center was also under a statutory duty to know the
location of its inmates, to supervise them, and to immediately report “any violation of a
condition set for the prisoner’s conduct.” 3)
              Thus, the incident report relating to Wassillie’s unauthorized departure
from the Parkview Center was presumptively admissible under the business records
hearsay exception.
              We acknowledge that Evidence Rule 803(6) contains a provision stating
that a business record should not be admitted (at least, not as hearsay) if “the source of
[the] information or the method or circumstances of [the] preparation [of the record]
indicate [a] lack of trustworthiness.” But other than noting that the incident report refers
to hearsay statements of staff members and another Parkview resident, Wassillie has not
suggested that there is anything about the content of the incident report, or the method
of its preparation, to indicate a lack of trustworthiness.
              Wassillie points out that the Commentary to Alaska Evidence Rule 803(6)
states that business records are presumed to be accurate only if the record is made when
the observer or participant “is acting routinely”. 4 Wassillie argues that no incident report
relatingto an escape from the Parkview Center can satisfy this test, because escapes from
the Center are unexpected rather than routine.
              This argument is based on a misreading of the rule and the commentary.
The rule does not require that the occurrence be routine. Rather, the rule requires that
the making of the record be routine — i.e., that the business practices of that entity call
upon its employees to accurately report and record that kind of occurrence.




   3
       See AS 33.30.111(c)(2) and (c)(4).

   4
       Commentary to Alaska Evidence Rule 803(6), third paragraph.


                                             –6–                                        2490

              Wassillie also contends that the incident report relating to his escape was
prepared “in anticipation of litigation”, and therefore was not admissible.
              Often times, when a business entity establishes an internal rule or procedure
requiring its employees to keep records of a certain type of occurrence, one of the
business entity’s motivations for establishing this internal rule or procedure is that the
business entity anticipates that this type of occurrence may give rise to litigation. But
this is not what courts mean when they speak of business records prepared “in
anticipation of litigation”. Rather, this phrase refers to records that are not prepared as
a matter of course, under established internalrules or procedures, but rather are prepared
specially in response to a particular occurrence, because the business entity anticipates
that litigation will arise from that occurrence.
              As McCormick on Evidence explains, the business record exception does
not cover reports prepared by a business entity’s employees “where the only function
that the report serves is to assist in litigation or [in] preparation [for litigation]” —
because, in such circumstances, “many of the normal checks upon the accuracy of
business records are not operative.” 5
              For instance, in Abyo v. State, 166 P.3d 55, 59-60 (Alaska App. 2007), we
were asked to decide whether the business records or public records exception applied
to the Department of Public Safety’s reports verifying the calibration of the breath test
machines used throughout this State to test DUI arrestees. We acknowledged that these
“verification of calibration” reports are prepared “in anticipation of criminal litigation




   5
       Kenneth S. Broun et alia, McCormick on Evidence (7th ed. 2013), § 288, Vol. 2,
p. 440 n. 31.

                                            –7–                                       2490

in a general sense”. 6 But we held that these reports still fell within the exception because
the reports are not prepared “in anticipation of litigation in a particular case.” 7
               This same reasoning applies to the Parkview Center’s incident reports
relating to inmate escapes. Even though one of Parkview’s motives in establishing the
reporting requirement may have been to better its position if any litigation were to arise
from an escape, the report in this case — the report relating to Wassillie’s escape — was
not specially created in anticipation of litigation arising from Wassillie’s particular
escape. Rather, the report was created because, under the Parkview Center’s business
procedures, its employees are required to prepare an incident report whenever any inmate
leaves without permission, whether or not there is any prospect of litigation.
               Accordingly, the incident report in Wassillie’s case was not prepared
“in anticipation of litigation” as that phrase is understood in this context.
               Wassillie also argues that the Parkview Center’s incident report does not
satisfy the requirements of the public records hearsay exception, Evidence Rule 803(8).
Based on this purported failure to satisfy the public records exception, Wassillie then
argues that the incident report necessarily fails to satisfy the requirements of the business
records exception.
               In Wilson v. State, 756 P.2d 307, 312-13 (Alaska App. 1988), we expressly
rejected the argument that a business record must also satisfy the requirements of the
public records exception. Our decision in Wilson controls this issue.
               For all of these reasons, we conclude that the incident report relating to
Wassillie’s escape from the Parkview Center was admissible under the business records




   6
       Abyo, 166 P.3d at 60.
   7
       Ibid.

                                            –8–                                         2490

exception to the hearsay rule. The superior court therefore properly denied Wassillie’s
motion to dismiss the indictment on this basis.
             Although we reach this conclusion, we acknowledge that Wassillie’s
hearsay objection was correct with regard to a small portion of the incident report. The
report recites that one of the Parkview inmates told the Parkview staff that Wassillie had
thrown a bottle of vodka into his room in an attempt to get him in trouble. The report
also identifies this same inmate as the one who initially reported that Wassillie had left
the Center through the front door.
             This information came from an inmate who (unlike members of the
Parkview Center staff) was under no business duty to honestly or accurately report the
activities of other inmates. Thus, the inmate’s statements to the Parkview staff did not
fall within the business records exception, and those statements were not admissible to
prove the truth of the matters asserted. The inmate’s statements were admissible only
for the limited purpose of showing that the inmate made these statements to the Parkview
staff — thus causing the staff to initiate their procedures for ascertaining whether
Wassillie had indeed left the Center without permission.
             Technically, then, the grand jurors should have been instructed that when
they considered the incident report, they could not consider the report’s description of
the inmate’s statements as proof of the matters asserted by the inmate, but only as
evidence that the inmate made these statements to the Parkview staff. But there is
essentially no possibility that this error influenced the grand jury’s decision to indict
Wassillie for escape.




                                          –9–                                        2490

       Wassillie waived any objection to the State’s amendment of the indictment


              As we explained toward the beginning of this opinion, Wassillie was
initially charged with second-degree escape under the provisions of former
AS 11.56.310(a)(1)(A) — i.e., under the theory that he unlawfully removed himself from
a correctional facility.
              Then, following the mistrial on this charge, the State filed a motion to
amend the indictment by charging Wassillie under a different subsection of the second-
degree escape statute — this time, under the theory that Wassillie unlawfully removed
himself “from official detention for a felony”.
              When the superior court asked Wassillie’s attorney if he took a position on
the State’s request to amend the indictment, the defense attorney told the court that he
“[did not] see a basis to object” to the proposed amendment of the charge.
              At the same time, Wassillie’s attorney indicated that the proposed
amendment of the indictment would probably not affect Wassillie’s defense to the escape
charge. The defense attorney told the court that he intended to argue that Wassillie was
authorized to leave the Parkview Center — that he had a pass that allowed him to be
physically absent from the Center, and that he was exercising that privilege when he left
the Center on the day in question.
              After hearing the defense attorney’s position on these matters, the superior
court granted the State’s motion to amend the indictment.
              Now, on appeal, Wassillie argues that the superior court committed error
by allowing the State to amend the indictment. He asserts that if the State wanted to take
him to trial on a different theory, the State was required to return to the grand jury and
obtain a new indictment on that theory.



                                          – 10 –                                     2490

                Wassillie has waived this argument. Alaska Criminal Rule 12(b)(1)-(2)
declares that all “[d]efenses and objections based on defects in the institution of the
prosecution” or based on “defects in the indictment” must be raised before trial. And
Rule 12(e) declares that a defendant’s failure to raise these defenses or objections before
trial (or before any pre-trial deadline set by the court) constitutes a waiver of the defense
or objection.
                For these reasons, Wassillie has waived his right to attack the amendment
of the indictment in this appeal.
                Nor does the record show plain error. Wassillie’s attorney affirmatively
told the superior court that he had no basis for objecting to the proposed amendment of
the indictment, and the defense attorney further implied that the amendment of the
indictment would, in any event, have little effect on Wassillie’s planned defense to the
charge. Under both the State’s initial theory and the State’s amended theory, the State
was required to prove that Wassillie’s departure from the Parkview Center was
unauthorized — and the defense attorney told the court that Wassillie was goingto assert
that he was authorized to leave the Center (because he had a pass).


       Conclusion


                The judgement of the superior court is AFFIRMED.




                                           – 11 –                                       2490

