Opinion
A-13384
10-06-2021
WALTER ALLAN FORSBERG, Appellant, v. STATE OF ALASKA, Appellee.
Michael L. Barber, Barber Legal Services, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, First Judicial District, Ketchikan, Trial Court No. 1KE-18-00027 CR, William B. Carey, Judge.
Michael L. Barber, Barber Legal Services, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
Walter Allan Forsberg was convicted, following a jury trial, of ten counts of possession of child pornography based on ten screenshots found in the photo gallery of his cell phone. At trial, Forsberg defended against these charges on the ground that he was unaware that the child pornography was on his phone. Forsberg argued that someone who borrowed his phone might have taken the screenshots, or the images might have been transferred from someone else's phone to his phone without his knowledge. To rebut this defense, the State was allowed to introduce evidence that the police had seized a second phone from Forsberg about four months after seizing the first phone containing images of child pornography. The second phone contained search terms that suggested that Forsberg was looking for child pornography. Forsberg objected to this evidence under Alaska Evidence Rules 404(b) and 403. The superior court overruled the objection. Forsberg now appeals that ruling.
AS 11.61.127.
A technical crimes unit expert for the Alaska State Troopers testified that the team recovered various search terms across multiple websites from the second phone. The terms included "kid," "junior girls porn," "young junior teen girls," "young," "Cambodian girl junior," and "junior porn."
On appeal, Forsberg argues that the superior court erred when it concluded that the evidence related to the search terms found on the second phone was admissible under Alaska Evidence Rule 404(b)(1) in order to prove intent, knowledge, or absence of mistake. According to Forsberg, the superior court incorrectly considered the terms "intent," "knowledge," and "absence of mistake" in their "colloquial sense, rather than in their narrower legal sense," and, when considered "in their technical sense," the evidence had no "case-specific relevance other than proving [his] general desire or willingness to engage in the kind of criminal behavior at issue in the case."
Willock v. State, 400 P.3d 124, 127 (Alaska App. 2017) (emphasis omitted).
We disagree. As the superior court correctly ruled, the challenged evidence was relevant to Forsberg's intent, knowledge, and absence of mistake - all of which were actively disputed at trial. Based on the search terms found on the second phone, a juror could reasonably find that Forsberg was less likely to be unaware of the child pornography found on the first phone.
See Alaska R. Evid. 401, 404(b)(1).
Forsberg also argues that the superior court erred by not excluding the evidence of the search terms as more prejudicial than probative under Evidence Rule 403. Trial courts have broad discretion in applying the balancing test in Rule 403.Given the nature of Forsberg's defense and the logical connection between the items found on the two phones, we find no abuse of discretion in the superior court's ruling.
Cooper v. Thompson, 353 P.3d 782, 789-90 (Alaska 2015).
Lastly, Forsberg argues that the State's failure to give advance notice of its intent to introduce evidence of the search terms on the second phone under Evidence Rule 404(b) prejudiced him. The record shows that the prosecutor failed to give proper advance notice of the 404(b) evidence because the prosecutor mistakenly believed that the evidence from the second phone constituted part of the charged offense. But the record also shows that Forsberg objected to the introduction of this evidence prior to the jury hearing it, and the court held a full hearing, outside the presence of the jury, to determine its admissibility under Rules 404(b) and 403. The court also ruled that the lack of advance notice did not prejudice Forsberg. We find no error in that ruling.
Moor v. State, 709 P.2d 498, 505-06 (Alaska App. 1985) (requiring the State "to give advance notice to the defendant and the court, out of the presence of the jury, of its intent to utilize any evidence governed by Alaska Evidence Rule 404(b)"); see also Willock, 400 P.3d at 129-30.
The judgment of the superior court is AFFIRMED.