Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

MEMORANDUM OPINION

MANNHEIMER, Judge.

Craig F. Stacks was convicted of first-degree assault and driving under the influence. These charges arose from an incident where Stacks, driving with a blood alcohol level of more than twice the legal limit, rear-ended another vehicle on the Parks Highway and caused serious injuries to its driver.

Stacks appeals his conviction, arguing that the trial judge should not have allowed the State to present evidence that, immediately following the collision, Stacks asked an onlooker, Michael McKernan, to remove a case of beer from the back of Stacks's damaged vehicle and hide it.

McKernan testified that he lived along the highway, and that he was sitting on his porch when he heard a loud noise and saw a vehicle come to rest in the ditch in front of him. McKernan went up to the vehicle and asked the driver (Stacks) if he was okay. Stacks replied that he had been drinking and that he was going to jail. Stacks then asked McKernan to "take all the beer cans out of the back of his vehicle for him." McKernan retrieved the beer from Stacks's vehicle and stashed the beer underneath another car that was parked about twenty feet away.

Another witness saw McKernan hide the beer, and this witness alerted the state troopers. The troopers retrieved the beer and questioned McKernan about it. McKernan later testified that, when the troopers questioned him, he thought to himself, "Boy, that was a stupid thing to do" — and he admitted what he had done.

Stacks contends that McKernan's testimony should have been excluded under Evidence Rule 403, on the ground that it was unfairly prejudicial, and that this unfair prejudice outweighed whatever probative value it might have.

When this objection was raised in the trial court, the trial judge concluded that Stacks's statements to McKernan and Stacks's conduct (asking McKernan to hide evidence of his drinking) were relevant to demonstrate Stacks's state of mind — specifically, his consciousness that he had been driving under the influence. The trial judge agreed that McKernan's proposed testimony would be "prejudicial" to Stacks's case — "[but only] in the sense that it [was] probative". Thus, the judge concluded, the probative value of McKernan's testimony outweighed its potential for unfair prejudice.

We have reviewed the record, and we conclude that the trial judge did not abuse her discretion when she found that the probative value of this evidence outweighed its potential for unfair prejudice. We therefore uphold the trial judge's ruling.

Stacks also appeals the composite sentence he received for the crimes of first-degree assault and driving under the influence.

First-degree assault is a class A felony.1 Stacks was a first felony offender, so his sentence for this crime was governed by AS 12.55.125(c)(2)(A), which specifies a presumptive sentencing range of 7 to 11 years' imprisonment for first felony offenders convicted of a class A felony that "caused serious physical injury".

For this offense, the superior court sentenced Stacks to 11 years with 3 years suspended (i.e., 8 years to serve). The court imposed a consecutive sentence of 60 days' imprisonment for the offense of driving under the influence.

On appeal, Stacks argues that when a judge sentences a defendant within the applicable presumptive range, there should be a presumption that the defendant should receive a sentence at the bottom of that range, and the sentencing judge should have to justify any greater sentence (even when the higher sentence is still within the applicable range). Stacks further argues that the facts of his case do not support a sentence greater than the 7-year low end of the applicable presumptive range.

There is some support in the legislative record for Stacks's argument that sentencing judges should presumptively begin their analysis at the low end of the applicable presumptive range. But even if Stacks's proposed interpretation of the presumptive sentencing ranges were correct, this would only mean that Stacks's sentencing judge would be required to explain her decision to impose a sentence greater than the 7-year low end of the applicable presumptive range. Here, the record reveals several potential reasons for imposing a sentence above the 7-year minimum.

Stacks's blood alcohol level was substantially above the legal limit. Several hours after the accident, Stacks still had a blood alcohol level of .206 percent.

In addition, the consequences of Stacks's crime were atypically serious. The victim — the driver of the vehicle that Stacks rear-ended — suffered a broken neck. He is in constant pain, and he is permanently disabled.

Moreover, aside from committing the offenses of first-degree assault and driving under the influence, Stacks committed the separate felony of tampering with evidence, AS 11.56.610(a)(1), when he prevailed on McKernan to remove the beer from his vehicle and hide it. Stacks was not prosecuted for this additional felony, but this information was presented at trial and in the pre-sentence report.

At the sentencing hearing, the judge noted that Stacks was a middle-aged offender (he was 47 years old at the time of sentencing), and that he had one prior conviction for driving under the influence (from three years before). Based on these factors, the sentencing judge stated that she had "some concern" about Stacks's potential for rehabilitation. And when she sentenced Stacks, the judge offered a lengthy analysis of Stacks's case under the Chaney criteria — i.e., the sentencing goals codified in AS 12.55.005.2

Given the superior court's discussion of those sentencing goals, and given the record in this case, we conclude that the court had ample reasons for sentencing Stacks to serve 8 years — a sentence in the middle of the applicable sentencing range.3

The judgement of the superior court is AFFIRMED.