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IN THE COURT OF APPEALS OF THE STATE OF ALASKA

PHILLIP A. DRUMMER,

Appellant,

v.

STATE OF ALASKA,

Appellee. Court of Appeals No. A -13627

Trial Court No. 1JU-19-00659 CR

O P I N I O N

No. 2773

— March 1, 2024

Appeal from the Superior Court, First Judicial District, Juneau,

Amy G. Mead , Judge.

Appearances: Susan Orlansky, Reeves Amodio LLC, under

contract with the Public Defender Agency, and Samantha

Cherot, Public Defender, Anchorage, for the Appellant. Nancy

R. Simel, 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.

Judge TERRELL.

Miriam Burke obtained a restraining order against Phillip A. Drummer,

her ex-boyfriend. The following month, Drummer confronted Burke while she wasw alking alongside a road way and physically assaulted her. Drummer was convicted

,

following a jury trial, of third

- degree assault and violating a protecti ve order

. 1

Drummer raises four claims on appeal. First , Drummer argues that the

superior court issued a mid

- trial ruling that infringed on his privilege against compelled

self

- incrimination, as recognized in Scott v. State

. 2 Shortly before trial , Drummer

subpoenaed a domestic violence shelter for records regarding Burke

. The shelter moved

to quash the subpoena , arguing that the records Drummer requested were privileged

under Alaska law

. In open court, b efore ruling on the motion to quash , the court asked

Drummer to explain why the records were relevant

. Drummer argues that this ruling

amounted to u nconstitutional compelled self

- incrimination. F or the reasons explained,

we reject Drummer’s claim of error.

Second, Drummer argues that the court erred by allowing the State to

admit seven text messages that he sent to Burke

. Drummer concedes that these

messages were relevant, but argues that they were more prejudicial than probative under

Alaska Evidence Rule 403. We have reviewed the record

, and conclude that the cou rt ’s

ruling was not an abuse of its discretion

.

Third, Drumm er argues that the court erred by allowing Burke to testify

that Drummer had strangled her on ten prior occasions

. We find that any error in

admitting this evidence under Alaska Evidence Rule 404(b) was harmless because the

jury acquitted Drummer of both s trangulation

- specific offenses

.

1 AS 11.41.220(a)(5) and AS 11.56.740(a)(1), respectively. The jury also a cquitted

Drummer of second

- degree assault (AS 11.41.210(a)(1) ) and one count of third

- degree

assault ( AS 11.41.220(a)(1)(A) ).

2 Alaska Const. art. I, § 9 (“No person shall be compelled in any criminal proceeding

to be a witness against himself.”) ; Scott v. State

, 519 P.2d 774 , 785 (Alaska 1974).

– 2

– 2773Finally, Drummer contends that the presentence report inaccurately

describes his criminal conduct. We agree, and remand this claim to the superior court

for additional fact-finding.

Background facts and procedure

Drummer and Burke were in a tumultuous on-again, off-again romantic

relationship. In February 2019, Burke broke up with Drummer and obtained a protecti ve

order that prohibit ed Drummer from contacting her “ in any way, directly or indirectly. ”

The following month, Burke was walking on the roadside in Juneau when

she saw Drummer running towards her. According to Burke, Drummer then threw her

into a ditch, pinned her down, and strangled her. Burke believed that Drummer was

trying to kill her. After Burke went limp, Drummer stopped assaulting her.

The following morning, Burke called her friend, Sam Hughes, and asked

for a ride to AWARE, a domestic violence shelter in Juneau. When Hughes picked

Burke up, he noticed dark bruising around her neck.

That night, Drummer sent Burke four text messages in which he

repeatedly apologized to Burke and asked for her forgiveness. But the next day,

Drummer sent Burke another text message in which he called her vulgar names and

threatened her. At a later time, Drummer sent Burke two more texts, referring to her as

his enemy and claiming she disrespected him.

One week after the assault, Burke went to the emergency room because of

injuries she sustained from Drummer. The emergency doctor diagnosed Burke with

abdominal pain. The doctor did not examine Burke’s neck at that time because Burke

did not disclose that she had sustained a neck injury.

The following day, Burke reported to the police that Drummer had

assaulted her. The police obtained a warrant to record a phone conversation between

Burke and Drummer. During this recorded call, Burke confronted Drummer about the

– 3

– 2773assault. Drummer apologized to Burke for hurting her and promised that he would not

“ put his hands ” on her again.

A few months later, Burke saw an ear, nose, and throat doctor due to

lingering symptoms from being “choked.” T he specialist diagnosed Burke with injuries

consistent with strangulation.

The State charged Drummer with second

- degree assault

, two counts of

third

- degree assault

, and violating a protective order. 3 O ne coun t of third

- degree assault

alleged that Drummer recklessly plac ed Burke in fear o f imminent serious physical

injury by using his hands or forearms

, while the other count alleged that he recklessly

caused physical injury to Burke and had two prior qualifying assault convictions.

Three days before trial

, Drummer subpoenaed AWARE for doc uments

related to Burke ’s stay at the shelter

. On the first day of trial, AWARE moved to quash

the subpoena

, asserting that Burke’s records were privileged under Alaska law

. On the

third day of trial, Drummer filed an opposition to AWARE’s motion in which he offered

to explain his position in camera

. AWARE opposed Drummer litigating the motion

ex parte

. T he court agreed, and ordered Drummer to explain the relevance of the reco rds

he subpoenaed in open court

. Rather than doing this, Drummer withdr e w the subpoena.

At trial, the State admitted the recorded phone call and seven text

messages that Drummer sent Burke following the assault. When Burke took the stand,

she also t estified that Drummer had strangled her ten separate time s before the present

offense

.

T he jury convicted Drummer of violating a protective order and third

degree assault under the recidivism theory, but acquitted him of second

- d egree assault

and third

- degree assault under the dangerous instrument theory

. T his appeal follow ed

.

– 4

– 2773 3 AS 11.41.210(a)(1), AS 11.41.220(a)(1)(A), AS 11.41.220(a)(5), and

AS 11.56.740(a)(1), respectively.The superior court did not err by requiring Drummer to explain the

relevance of the privileged records in open court

Drummer first argues that the superior court erred by ordering him to

explain his theory for why Burke’s records from AWARE were relevant in open court,

rather than ex parte . Drummer argues that this ruling infringed on his privilege against

compelled self

- incrimination by making him reveal his defense strategy to the State

.

We begin our analysis by explaining the context for this ruling in more detail.

Three days before Drummer’s scheduled t rial, Drummer subpoenaed

AWARE for records related to Burke’ s stay at the domestic violence shelter

.

Specifically, t he subpoena ordered the shelter to provide Drummer the following :

(1) case notes, documents, and counseling notes related to Burke; (2) documents

“ showing residential related contracts or agreements ” ; (3) documents reflecting the

days Burke moved into and out of the shelter; and (4) documents related to the

“termination” of Burke’s residency at AWARE.

On the first day of trial, AWARE moved to quash Drummer’s subpoena

,

arguing that Burke’s records were privileged under Alaska law

. 4 On the third day of

trial, Drummer filed an opposition to AWARE’s motion

. In Drummer’s opposition, he

stated that AWARE ’s records contained information relevant to Burke’s “motive, bias

and interest” as a witness, and that h e could provide more information about their

relevance in camera

. But notably, when Drummer filed his opposition, the State had

already called and dismissed Burke as a witness and Drummer’s attorney had already

cross

- examined her.

AWARE argued that the subpoenaed documents were privileged under two statutes:

AS 12.45.049 ( providing that “[c]onfidential communications between a victim of

domestic violence or sexual assault and a victim counselor are privileged” ) and

AS 18.66.200 ( providing that, barring statutory exceptions, “a victim or victim counselor

may not be compelled , without appropriate consent, to give testimony or to produce records

concerning confidential communications for any purpose in a criminal . . . proceeding” )

.

– 5

– 2773 4T he superior court heard argument from Drummer and AWARE

regarding Drummer’s request to proffer the relevance of the document ex parte

.

Drummer argued that his right to “not

. . . reveal [his] witnesses or [his] de fenses” would

be violated if he was required to proffer the case

- specific relevan ce of Burke’s AWARE

records in the prosecutor’s presence. AWARE argued that the prosecutor could not

intelligently oppose the subpoena unless the prosecutor understood why Drummer

believed the privileged records were relevant to his case

.

T he court denied Drummer’s request , explaining that because the State

was “entitled to argue on behalf of [Burke’s] rights

, ” Drummer must disclose his theory

of relevance to the State

. F ollowing a short recess

, Drummer’s attorney withdrew the

subpoena without further explanation

.

On appeal, Drummer argues that the superior court ’s ruling infringed on

his privilege against compelled self

- incrimination, as recognized in Scott v . State

. 5 T he

State argu es that the ruling did not run afoul of Scott , and alternatively, that Drummer

waived his right to challenge this ruling by voluntarily withdrawing the subpoena

.

Because w e agree that Scott does not apply to the circumstances presented here , we do

not reach the State’s waiver argument.

In Scott v. State , the Alaska Supreme Court considered the circumstances

under which pretrial discovery orders infringe on the privilege against compelled self

incrimination. At the State’s request, the court ordered the defendant to disclose

extensive information to the State before trial , including the names and addresses of

prospective defense witnesses

, statements of prospective witnesses in the defendant’s

possession

, and detailed information about the defendant’s alibi

. 6 The defendant argued

that the Alaska Constitution ’s privilege against compelled self

- incrimination afforded

5 Alaska Const. art. I, § 9; Scott , 519 P.2d at 785.

6 Scott , 519 P.2d at 775.

– 6

– 2773him the “right to refuse to disclose some or all of th e evidentiary material” ahead of his

trial. 7

The s upreme c ourt agreed, hold ing that “ the privilege against compelled

self

- incrimination under the Alaska C onstitution prohibits extensive pretrial

prosecutorial discovery in criminal proceedings.” 8 Notably, t he court r easoned that “a

defendant’s midtrial strategy choices are not identical to his pretrial decisions

. ” 9 The

supreme court announced a “three

- fold test” to determine whether pretrial compelled

disclosure undermined the privilege

. 10 The test requires courts to determine whether the

sought after evidence is (1) testimonial ; (2) incriminating ; a nd (3) compelled

. 11 Unless

a ll three factors exist, a defendant’s privilege against self

- incrimination is not

undermined under the holding in Scott

. 12

Drummer argues that Scott applies, and that the court infringed on his

privilege by “forcing” him to disclose evidence supporting his defense to the State.

However, t here are sign ificant factual differences between Scott and the present case.

In Scott , the court ordered the pretrial discovery of nonprivileged information in Scott’s

possession that the State was not privy to. 13 Conversely, here

, the court ordered the

defense to explain the relevance of privileged records that Drummer sought to obtain

mid

- trial from a third party. The procedural postures of these cases differ regarding

7 Id. at 777.

8 Id. at 785.

9 Id. at 783.

10 Id. at 785.

11 Id.

12 Gipson v. State , 609 P.2d 1038, 1043

- 44 (Alaska 1980 ) ; see Scott , 519 P.2d at 785

-

86

.

13 Scott , 519 P.2d at 775.

– 7

– 2773when the request was made (pretrial versus midtrial), who made the request (the State

versus the defendant), and whose records were requested (the defendant versus a third

party). Additionally, because Drummer was seeking to subpoena documents privileged

under Alaska law, t he State and AWARE had an interest in complying with the law and

protecting Bu rke’s right to pri vacy. 14

Due to these differences, we decline to extend the holding in Scott to the

facts in the present case

. Moreover, even if we did extend the Scott holding to this case,

D rummer has failed to explain how proffering the relevance of t he AWARE records he

sought was both incriminatory and testimonial in nature . For these reasons, we reject

Drummer’s claim that the superior court infringed on his privilege against compelled

self

- incrimination.

The superior court did not abuse its discretion by allowing the State to

admit Drumme r ’s text messages to Burke

Next, Drummer claims that the superior court abused its discretion by

allowing the State to admit seven text messages that he sent Burke following the

roadside assault

. Drummer arg ues the messages were in admissible under Alaska

Evidence Rule 403 because they were more un fairly prejudicial than probative

.

The evening after the assault , Drummer text ed Burke four messages in

which he effusively apologized to her

. For example, in the fourth text message,

Drummer wrote:

Hey I wanted to apologize [to] you again and hope that you

find the forgiveness in your heart and fuck with me again

even though I don’t deserve it. [I’m] sorry bay bay I was out

of line. Please forgi ve me!

Burke testified that she believed Drummer was apologizi ng for strangling her and

throwing her in a ditch

.

14 AS 12.45.049 ; AS 18.66.200.

– 8

– 2773The following day, Drummer sent Burke a fifth text message in which he

called Burke derogatory names (including a “whore” and an ethnic slur ) a nd threatened

both Burke and Sam Hughes

. In the last two text messages

, Drummer accused Burke

of “disrespecting” him and called her a “bitch.”

The State moved to admit all seven text messages at trial , arguing that the

apologetic messages were probative of Drummer’s consciousness of guil t

, and the

remaining messages were probative of Drummer ’s temper and how he treats Burke

when he feels disrespected

. T he trial court ruled, over Drummer’s objection

, that the

messages were admissible under Evidence Rule 403

.

Under Evidence Rule 403 , relevant evidence may be excluded if its

probative value is outweighed by the danger of unfair prejudice

. 15 As the s upreme c ourt

has explained, trial court s are afforded “broad discretion” under the law to apply this

balancing te st

. 16 Thus , t his Court will only find error in a court’s application of Evidence

Rule 403 “where a clear abuse of discretion has been shown.” 17

Applying this standard , we find that the superior court did not err in

admitting Drummer’s text messages to Burk e

. These text messages , which alluded to

the assault and demonstrated the complex dynamics underlying Drummer and Burke’s

relationship, were relevant and probative to the State’s case

. W e are mindful that some

of the seven text messages contained cumulative information , and that one message

contained an ethnic slur directed at Burke

. However, we find that the superior court did

15 The commentary to Alaska Evidence Rule 403 defines “unfair prejudice” as “an

undue tendency to suggest decision on an improper basis, commonly, though not

necessarily, an emotional one.” Alaska R. Evid. 403 cmt. para. 5.

16 Bluel v. State , 153 P.3d 982, 986 (Alaska 2007)

.

17 Johnson v. State , 889 P.2d 1076, 1081 (Alaska App. 1995).

– 9

– 2773not abuse its “broad” discretion by concluding that the probative value of this evidence

outweighed the risk that the jury would convict Drummer on an improper basis. 18

The superior court did not commit reversable error by allowing Burke to

testify that Drummer had strangled her in the past

Drummer next argues that the superior court erred by allowing the State

to admit evidence that Drummer had strangled Burke ten times before.

The State argued that this evidence of past strangulations was admissible

under Alaska Evidence Rule 404(b)(1) and Alaska Evidence Rule 404(b)(4) to establish

past similar acts of violence in Dru mmer and Burke’s romantic relationship, and to

contextualize Burke ’s fear that Drummer was trying to kill her. 19

T he superior court analyzed the factors in Bingaman v. State 20 and ruled,

over Drummer’s objection, that Burke could testify about the past strangulations. 21

However, the court restricted Burke’s testimony to “general statements” that the

strangulations occurred, and prohibited the State from eliciting any details from Burke

about the incidents. The State complied with these limitations during Burke’s

testimony. The court also issued a jury instruction cautioning that Drummer should not

be convicted on the sole basis of his “uncharged acts.”

18 See Bluel , 153 P.3d at 986

.

19 Evidence Rule 404(b)(1) provides: “Evidence of other crimes, wrongs, or acts is not

admissible if the sole purpose for offering the evide nce is to prove the character of a person

in order to show that the person acted in conformity therewith. It is, however, admissible

for other purposes, including, but not limited to, proof of motive, opportunity, intent,

preparation, plan, knowledge, iden tity, or absence of mistake or accident.”

20 Bingaman v. State , 76 P.3d 398, 415

- 16 (Alaska App. 2003) (holding that propensity

evidence may only be admitted under Evidence Rules 401(b)(2)

- (4) if the trial court first

weighs six factors).

21 It is unclear from the superior court ’s ruling whether it admitted this evidence under

Evidence Rule 404(b)(1), Evidence Rule 404(b)(4), or both provisions.

– 10

– 2773I n Drummer’s case, we need not decide whether Burke’s testimony of the

past strangulations was error because the jury’s verdict rendered any error in admitting

this evidence harmless. At trial, the State argued that Drummer committed seconddegree and third-degree assault when he strangled Burke with his hands. The State also

argued that Drummer committed a separate count of third-degree assault when he

recklessly caused physical injury to Burke more generally.

The jury acquitted Drummer of the two strangulation-specific assaults, but

convicted Drummer of the more generalized assault. Because the jury acquitted

Drummer of the counts specific to strangulation, the jury did not employ the propensity

inference that because Drummer had strangled Burke ten times before, he must have

strangled her on the roadside. Drummer’s defense was thus not prejudiced, and any

error in permitting Burke’s testimony was harmless.

Why a remand is warranted so the superior court can evaluate disputed

facts in the presentence report

Drummer next challenges the presentence report, claiming that it

inaccurately states that he strangled Burke. The State argues that Drummer cannot raise

this argument on appeal because he did not object to the report’s accuracy in the

superior cou rt

.

Following trial, the jury acquitted Drummer of assault under the theory

that he strangled Burke, but convicted him under the more general theory that he

recklessly injured Burke. These acquittals suggest that the jury either concluded that

Drummer did not strangle Burke, or concluded that the strangulation was not as serious

as the State alleged. Drummer’s presentence report does not reflect this nuance. Rather,

the report states that Drummer strangled Burke until she “blacked out”

— a narrative

derived not from the evidence at trial, but from Burke’s unsworn statement to the police.

Under Alaska Criminal Rule 32.1(d)(5), a defendant must provide notice

to the court of any objection to the presentence report, the basis for the objection, and

– 11

– 2773information that refutes the alleged inaccuracy. Ahead of sentencing, Drummer asked

the superior court to “disregard” the offense narrative because it conflicted with the

evidence at trial and the jury’s findings

. We acknowledge that Drummer’s objection

co uld have been clearer. However, Drummer object ed in the context of the jury’s

verdict acquitting him of assault under the theory that he strangled Burke. Given this

context, which the court was aware of, we find that Drummer adequately noticed the

basis of his objection and the information that refutes the alleged inaccuracy.

Once a defendant objects to factual assertions in the presentence report,

Criminal Rule 32.1(f)(5) requires that the court evaluate the disputed assertions and

modify the report, if warranted. Accordingly, we remand this case so the superior court

can adjudicate, pursuant to the procedures in Criminal Rule 32.1(f)(5), 22 whether the

presentence report’s narrative is consistent with the evidence presented at trial.

Conclusion

We AFFIRM Drummer’s convictions and sentence , but REMAND his

case to the superior court for further proceedings related to the presentence report. We

do not retain jurisdiction.

22 Alaska Criminal Rule 32.1(f)(5) provides , in relevant part : “ The court shall enter

findings rega rding any disputed assertion in the presentence report. Any assertion that has

not been proved shall be deleted from the report; any assertion that has been proved only

in part shall be modified in the report. Alternatively, if the court determines that th e

disputed assertion is not relevant to its sentencing decision so that resolution of the dispute

is not warranted, the court shall delete the assertion from the report without making any

finding. ”

– 12

– 2773