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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 was 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

walking alongside a roadway and physically assaulted her. Drummer was convicted, 

following a jury trial, of third-degree assault and violating a protective 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, before ruling on the motion to quash, the court asked 

Drummer to explain why the records were relevant. Drummer argues that this ruling 

amounted to unconstitutional compelled self-incrimination. For 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 court’s

ruling was not an abuse of its discretion. 

Third, Drummer 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 strangulation-specific offenses. 

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

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 – 2773
 
Finally, 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 protective 

order that prohibited 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 – 2773
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

assault. 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.” The 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 One count of third-degree assault 

alleged that Drummer recklessly placed Burke in fear of 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 documents 

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. The court agreed, and ordered Drummer to explain the relevance of the records 

he subpoenaed in open court. Rather than doing this, Drummer withdrew 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 testified that Drummer had strangled her ten separate times before the present 

offense. 

The jury convicted Drummer of violating a protective order and thirddegree assault under the recidivism theory, but acquitted him of second-degree assault 

and third-degree assault under the dangerous instrument theory. This appeal followed. 

– 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 trial, Drummer subpoenaed 

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

Specifically, the 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 he 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
 

4 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The 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] defenses” would 

be violated if he was required to proffer the case-specific relevance 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. 

The 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. Following 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 The 

State argues 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 we 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 selfincrimination. 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 – 2773
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

trial.7 

The supreme court agreed, holding that “the privilege against compelled 

self-incrimination under the Alaska Constitution prohibits extensive pretrial 

prosecutorial discovery in criminal proceedings.”8 Notably, the court reasoned 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; and (3) compelled.

11 Unless 

all 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, there are significant 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 – 2773
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

when 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, the State and AWARE had an interest in complying with the law and 

protecting Burke’s right to privacy.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, 

Drummer has failed to explain how proffering the relevance of the 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 Drummer’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 argues the messages were inadmissible under Alaska 

Evidence Rule 403 because they were more unfairly prejudicial than probative. 

The evening after the assault, Drummer texted 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 forgive me! 

Burke testified that she believed Drummer was apologizing for strangling her and 

throwing her in a ditch. 

14 AS 12.45.049; AS 18.66.200. 

– 8 – 2773
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

called Burke derogatory names (including a “whore” and an ethnic slur) and 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 guilt, and the 

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

when he feels disrespected. The 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 supreme court 

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

balancing test.

16 Thus, this 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 Burke. 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. We 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 – 2773
 
 

not 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 Drummer and Burke’s romantic relationship, and to 

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

The superior court analyzed the factors in Bingaman v. State20 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 evidence 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, identity, 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 – 2773
 
In 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 court. 

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 – 2773
 
 

 

information 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

could have been clearer. However, Drummer objected 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 regarding 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 the 

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