Daniel Rocero v. State of Alaska

NOTICE
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, although it may be cited for whatever persuasive value it may have. See
McCoy v. State, 80 P.3d 757, 764 (Alaska App. 2002).
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DANIEL ALEX ROCERO,
Appellant,
v.
STATE OF ALASKA,
Appellee.
Court of Appeals No. A-14276
Trial Court No. 3AN-22-02045 CR
MEMORANDUM OPINION
No. 7216 — September 9, 2026
Appeal from the Superior Court, Third Judicial District,
Anchorage, Peter Ramgren, Judge.
Appearances: Jay A. Hochberg, Attorney at Law, Anchorage,
under contract with the Office of Public Advocacy, for the
Appellant. Seneca Theno Freitag, Assistant Attorney General,
Office of Criminal Appeals, Anchorage, and Treg R. Taylor,
Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge WOLLENBERG.

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Daniel Alex Rocero was convicted, following a jury trial, of one count of
second-degree murder and one count of tampering with physical evidence.1 Rocero now
appeals his convictions, raising two claims.
First, Rocero argues that the prosecutor made several improper remarks
during closing arguments. Because Rocero did not object to these statements, he must
show plain error. Although we agree with Rocero that some of the prosecutor’s
statements were improper, we conclude that the statements, considered both
individually and as a whole, do not constitute plain error.
Second, Rocero argues that his conviction for tampering with physical
evidence constituted a fatal variance because the superior court’s response to a jury
question regarding the basis for this charge allowed the jury to convict him for a crime
that was not presented to the grand jury. Having reviewed the record, we find no fatal
variance. To the extent the claim is better understood as challenging the court’s
response to the jury question, to which Rocero did not object, Rocero has not
established plain error.
We therefore affirm the judgment of the superior court.
Underlying facts and trial proceedings
On March 20, 2022, Pretrial Enforcement Department (PED) officers
conducted a welfare check on Keenan Wegener after receiving multiple alerts from an
ankle monitor he was wearing. The alerts indicated that Wegener was at a residential
address and had not moved since the previous morning. When PED officers arrived at
Wegener’s location and made contact with the owner of the residence, Norma Reece,
the officers could hear ankle monitor alerts coming from inside the garage.
The PED officers called the Anchorage Police Department for assistance,
and a police officer arrived at the scene. With Reece’s permission, the officers entered
1 AS 11.41.110(a)(1) and AS 11.56.610(a)(1), respectively.

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the house and then the garage, where they discovered Wegener’s dead body inside a
large tote, hidden behind a white sheet.
Based on an ensuing investigation, officers arrested Daniel Alex Rocero
and Adam Pringle. Rocero and Pringle were each indicted on two counts of second-
degree murder, one count of manslaughter, and one count of tampering with physical
evidence.
The superior court severed Rocero’s case from Pringle’s, and Rocero’s
case proceeded to a jury trial.2
At Rocero’s trial, the only eyewitness to the events immediately
surrounding Wegener’s death to testify was Cortni Brown. Brown received immunity
in this case in exchange for her testimony. At the time of Wegener’s death, Brown had
been staying at Reece’s house for about a week, making various repairs. Wegener had
also been helping Reece out with tasks around her house, although he was not staying
there.
Brown testified to periodically seeing Rocero and Pringle around Reece’s
house during the week leading up to Wegener’s death. According to Rocero’s former
romantic partner, Rocero and Pringle knew each other and had been hanging out “for
weeks” prior to then. Brown testified that there had been drug use going on in the house
and that she was on drugs at the time she observed the events in this case. Brown also
testified that she was facing felony drug charges at the time of trial, but that she had not
been offered a plea deal or leniency in that case in exchange for her testimony in this
case.
Text messages recovered from Rocero’s phone revealed multiple outgoing
texts and calls made to Pringle in the early morning of March 18, 2022. At 12:44 a.m.,
Rocero texted Pringle, “That guy that got you is here.” Rocero also sent follow-up
2 The court granted Rocero’s motion to sever his case from Pringle’s based on
Rocero’s opposition to delaying trial. See Alaska R. Crim. P. 45(d)(5).

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messages to Pringle, including: “Call me back,” “Are you coming,” and then, at 1:30
a.m., “He is gone.” The State presented evidence from Wegener’s ankle monitor
location data showing that Wegener arrived at Reece’s house at 12:41 a.m. on March
18 and left right before 1:30 a.m.
Brown testified that later that day, she was working downstairs in the
garage at Reece’s house when Pringle leaned into the garage and greeted her. She saw
Wegener lean in behind Pringle and say something to him. Brown testified that Pringle
then asked her for “something heavy,” and he grabbed a sledgehammer (described by
Brown as a “homemade sledgehammer”) from the work bench between them. After the
two men exited the garage, Brown heard “hysterical” barking coming from the dogs in
the hallway.
According to Brown, she moved towards the hallway and observed
Pringle swinging the sledgehammer at Wegener, who was lying on the ground on his
back. Brown also saw one of the dogs biting Wegener as he lay on the ground. After
pulling the dogs away, Brown observed Rocero standing over Wegener with his foot
placed on Wegener’s neck. Brown testified that Rocero was pressing his arm against
his own knee, thus further applying pressure on Wegener’s neck.
Brown went back into the garage. When she returned to the hallway
minutes later, she observed Wegener’s body by the doorway to the stairs, lying “kind
of crooked on the floor on his back.”
Brown testified that she then joined Rocero, Pringle, and Reece upstairs
in a discussion about whether Wegener was alive and whether they should take him to
the hospital. According to Brown, Reece believed Wegener could not have survived
“injuries like that” and suggested that they dispose of Wegener’s body at Thunderbird
Falls, but the group rejected that plan. Brown further testified that she observed Rocero
wipe down the wall in the downstairs hallway.
Brown also testified that when she was initially interviewed by the police
after the incident, she denied that she had witnessed anything happen to Wegener. She

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failed to identify Rocero in a photo line-up. However, during subsequent police
interviews, Brown told the police more information regarding Wegener’s death. She
also testified at trial that she had lied to the police during her initial interviews and
omitted “as much as [she] could.”
The State presented the testimony of the medical examiner who performed
an autopsy on Wegener. The medical examiner testified that Wegener had suffered
blunt force injuries to his scalp, forehead, and face, as well as to his torso and
extremities, and that his eyes had petechial hemorrhaging, which indicated that there
had been pressure to the neck area and asphyxiation. The medical examiner also
testified to his opinion that Wegener’s neck contained a patterned imprint, consistent
with a shoe print. He testified that it was “possible” that some of Wegener’s injuries
resulted from dog bites but that he did not see anything suggesting that. The medical
examiner concluded that the primary cause of Wegener’s death was “blunt force injuries
of the head and neck with probable traumatic asphyxia.”
The State introduced surveillance videos of Reece’s house, which placed
Rocero at that location when Wegener was attacked. A DNA analysis of the scene
revealed Rocero’s DNA on two stains on Wegener’s clothes and Wegener’s DNA on
the hallway door by the garage.3 In the garage, the police found the sledgehammer
Brown had described.
In his opening statement, defense counsel asserted that Wegener, who was
highly intoxicated at the time, entered Reece’s house and fell down the stairs, hitting a
door at the bottom. But following Brown’s testimony about the dog biting Wegener and
the medical examiner’s testimony that it was possible some of Wegener’s injuries
resulted from dog bites, Rocero filed a notice of rebuttal expert. Rocero informed the
3 The State’s DNA expert also testified that there was blood present in samples taken
from the hallway floor, the hallway side of the door frame, and from the east wall of the
hallway.

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court outside the presence of the jury that he was adapting his defense theory to include
dog bites as a cause of Wegener’s injuries and that he wished to present the testimony
of an expert on dog bites and dog behavior.
The defense expert testified and opined that most of Wegener’s injuries,
including the markings on his neck, were caused by dog bites or scratches. The expert
witness also testified to his opinion that the dogs in the house were territorial and had
attacked Wegener as he entered the house, causing him to fall down the stairs.4
In rebuttal, the State recalled the medical examiner, who again testified
that, while some of Wegener’s injuries could have been caused by dog bites, others (like
the petechiae on Wegener’s neck) were inconsistent with dog bites.
In closing, the State argued that Pringle beat Wegener with a
sledgehammer and Rocero asphyxiated him by applying pressure to his chest and neck.
The State argued that Rocero was guilty of second-degree murder under either a
principal or accomplice theory. The State also argued that Rocero was guilty of
tampering with physical evidence for wiping blood off of the wall. In contrast, Rocero
argued that Wegener was drunk and high and had died after being attacked by dogs,
falling down the stairs, and hitting his head on the door.
The jury found Rocero guilty of all four counts. The superior court merged
the two second-degree murder verdicts and the manslaughter verdict into a single
conviction for second-degree murder. Rocero was therefore convicted of second-degree
murder and tampering with physical evidence.
This appeal followed.
Rocero’s claims of error regarding the prosecutor’s closing argument
Rocero first argues that the prosecutor made a number of improper
statements during closing argument and rebuttal that denied him a fair trial. Rocero
4 The defense expert did not directly opine on Wegener’s cause of death.

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argues that these comments fall into three categories: (1) improper statements about
Rocero’s appearance, (2) statements improperly vouching for a witness’s credibility,
and (3) statements denigrating the defense theory and defense counsel. Rocero further
asserts that the cumulative effect of these comments prejudiced him and that his
convictions must therefore be reversed.
Because Rocero did not object to these comments at trial, he must show
plain error. Plain error is an error that “(1) was not the result of intelligent waiver or a
tactical decision not to object; (2) was obvious; (3) affected substantial rights; and
(4) was prejudicial.”5
The prosecutor’s statements about Rocero’s appearance
As we noted above, the tampering with physical evidence charge was
based on the allegation that Rocero wiped down the blood in the hallway. During
closing argument, defense counsel contested this charge, arguing, “There’s no evidence
that these guys cleaned anything. They look like cleaners? They’re not cleaners. These
guys don’t clean.”
In rebuttal, the prosecutor responded directly to this argument and said
that Rocero did not “look like a cleaner” and instead “look[ed] like a murderer”:
[Defense counsel] told you that they don’t look like cleaners.
I agree. I mean, he doesn’t look like a cleaner. He certainly
didn’t do a very good job of cleaning up. He does look like
a murderer. [Defense counsel] said he’s scary.[6] The
evidence shows he’s a murderer. The evidence is what
makes him look like a murderer.
5 Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
6 In the transcript prepared for this appeal, the prosecutor is reported as saying,
“[Defense counsel], that he’s scary.” In his opening brief, Rocero — relying on the audio
recording of trial — instead recites this quotation as we have here, stating,
“[Defense counsel] said he’s scary.” (Emphasis added.) We have listened to the audio from
trial and confirmed that the prosecutor remarked that defense counsel “said he’s scary.”

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On appeal, Rocero argues that the prosecutor’s comment that Rocero
“does look like a murderer” was irrelevant and inflammatory.
We agree with Rocero that it was improper for the prosecutor to argue that
Rocero “does look like a murderer.” A prosecutor is prohibited from “expressing a
personal belief as to the evidence, from making appeals calculated to inflame passions
and prejudices of the jury, and from advancing arguments based . . . on issues other than
the guilt or innocence of the accused.”7 Specifically, a prosecutor should not make
arguments meant to appeal to the prejudices of the trier of fact.8 Suggesting that Rocero
looked like a murderer had the potential to inflame the prejudices of the jury and
advance an argument that Rocero should be found guilty based on his appearance and
not based on the evidence.9
But the prosecutor appeared to recognize the impropriety, immediately
couching his remark in the evidence of the case.10 In particular, after saying, in response
7 Patterson v. State, 747 P.2d 535, 538 (Alaska App. 1987); see also Anthony v. State,
521 P.2d 486, 495-96 (Alaska 1974) (“No insinuations, indications or implications
suggesting guilt should be displayed before the jury, other than admissible evidence and
permissible argument.” (quoting Brooks v. Texas, 381 F.2d 619, 624 (5th Cir. 1967))).
8 Hess v. State, 435 P.3d 876, 881 (Alaska 2018).
9 See Patterson, 747 P.2d at 538. In fact, there had been discussion during trial about
limiting the admission of photographs of Rocero taken after the incident in order to
minimize the impact of certain aspects of Rocero’s appearance, specifically large arm
tattoos that the prosecutor identified as gang-related. The parties discussed this issue prior
to opening statements and again before defense counsel introduced photographs of
Rocero’s hands from the time of the offense. And in a sidebar discussion regarding whether
the prosecutor could ask Brown if she was scared of Rocero based on rumors she had heard
of his previous violence, the court stated that “we’ve done our best to minimize any issues
with tattoos, with his appearance. And we don’t want . . . Mr. Rocero convicted based on
how he looks.” The court thus restricted the prosecutor to only asking, “Isn’t it true, and
this is a yes or no question, isn’t it true that you heard rumors about Mr. Rocero that made
you scared of him?”
10 See Rogers v. State, 280 P.3d 582, 591 (Alaska App. 2012) (holding that a
prosecutor’s “brief references to [defendant] as a ‘murderer’” were not a conveyance of

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to defense counsel’s argument, that Rocero does not look like a cleaner but instead
“look[s] like a murderer,” the prosecutor said, “The evidence shows he’s a murderer.
The evidence is what makes him look like a murderer.” Rocero was charged with
murder, and the prosecutor could properly argue that the evidence supported a
conclusion that Rocero committed the murder of Wegener. Indeed, if Rocero had
objected, the superior court likely would have given a curative instruction telling the
jury that it should look solely to the evidence in the case to determine Rocero’s guilt.
In context, the prosecutor’s remark was “isolated and not so inflammatory” that it was
“likely to lead the jury to decide the case based on improper factors.”11
Rocero acknowledges on appeal that, in context, this argument on its own
does not constitute plain error. Rather, Rocero argues that, when considered
cumulatively with the prosecutor’s other comments, it rendered Rocero’s trial
fundamentally unfair.
We therefore proceed to address Rocero’s remaining challenges to the
prosecutor’s closing argument.
her personal opinion, but rather “were aimed at encouraging the jury to focus its inquiry on
whether [defendant] was guilty of murder”).
11 Id. Rocero argues that the prosecutor compounded the improper statement about
Rocero’s appearance by noting that defense counsel “said he’s scary.” But there was no
objection to this observation, and it was not an obviously wrong characterization of defense
counsel’s remarks from earlier in the trial. During his opening statement, defense counsel
made two comments on Rocero’s appearance. First, defense counsel stated, “These are
guys that have been on [the] other side of the tracks. They’re in cuffs. They look like the
kind of people that would have murdered [Wegener]. That’d be my first hunch. You bet.”
Defense counsel later stated, “I don’t know why exactly they have my client there, except
he’s a great big guy with a bunch of tattoos, and he looks like the kind of guy I’d be afraid
of that could do something like that.” And then in closing argument, defense counsel stated
that Rocero is “not some nefarious character out of a comic book, even though he looks
like he could be.”

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The prosecutor’s statement regarding Brown’s credibility
Rocero also argues that the prosecutor improperly vouched for the
credibility of the State’s principal witness, Brown. Specifically, Rocero challenges the
following statement made by the prosecutor during rebuttal argument: “I don’t think
that the way [Brown] acted on that stand, just the complete, heartbroken, heartbreaking
testimony that she provided over the course of two days, indicates that she was doing
this because she thinks that she’s going to get some sort of favor.” Rocero argues that
this statement was particularly inappropriate because there were reasons to doubt the
veracity of Brown’s testimony, such as the inconsistencies between her original
statements to the police and her testimony at trial.
A prosecutor is prohibited from expressing their personal belief as to the
reliability of a witness.12 Vouching for the credibility of a witness may give the
impression that there is evidence known to the State that was not presented at trial.13
However, a prosecutor may certainly comment on the credibility of witnesses if the
comments are “based on the evidence and facts properly before the jury.”14
The prosecutor’s statement about Brown did not give the impression that
there was any evidence known to the State regarding Brown’s credibility that was not
presented at trial. Although the prosecutor used the first person, his underlying
argument was that Brown’s demeanor, which the jury observed for itself throughout
Brown’s testimony, lent her testimony credibility.15 And immediately following the
12 Darling v. State, 520 P.2d 793, 794 (Alaska 1974).
13 See United States v. Young, 470 U.S. 1, 18-19 (1985); Darling, 520 P.2d at 794.
14 Snyder v. State, 2007 WL 1098414, at *4 (Alaska App. Apr. 11, 2007) (unpublished)
(quoting Marrone v. State, 359 P.2d 969, 984 (Alaska 1961)).
15 See Williams v. State, 2021 WL 1118079, at *2-3 (Alaska App. Mar. 24, 2021)
(unpublished) (noting that a witness’s demeanor is a relevant consideration for the jury);
see also Alaska Criminal Pattern Jury Instruction 1.10 (2012) (instructing the jury to

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statement, the prosecutor referred directly to Brown’s testimony, noting that “she’s not
expecting to get any sort of deal in connection for her testimony” (presumably referring
to Brown’s testimony that she had not received a plea offer in her pending drug case in
exchange for her testimony).
Moreover, the prosecutor made clear that it was the jury’s role to evaluate
Brown’s credibility. He prefaced the disputed remark by directly telling the jury:
“Ladies and gentlemen, her credibility is a big issue for you to consider in this. You
have to make a credibility determination.” And throughout his closing argument, he
discussed the factors the jury should consider in evaluating Brown’s credibility,
including Brown’s attitude and behavior on the stand, and argued that the evidence at
trial supported the conclusion that her testimony was credible.
We therefore reject Rocero’s claim that the prosecutor improperly
vouched for Brown’s credibility.
The prosecutor’s statements about the defense and the defense
expert witness
Finally, Rocero argues that the prosecutor’s statements throughout his
closing argument delegitimized the defense and personally attacked defense counsel.
Rocero contends that the prosecutor did this by arguing that defense counsel colluded
with the defense expert to present perjured testimony.
We have drawn a distinction between “(1) permissible prosecutorial
argument that a defendant’s version of events is not credible, given the evidence in the
case, and (2) impermissible argument that ‘disparages the legitimacy’ of the legal theory
consider, inter alia, the witness’s “behavior and appearance on the stand and the way the
witness testifies” in evaluating a witness’s testimony).

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or defense asserted by the defendant.”16 A prosecutor may not make statements
suggesting that the jury should consider their personal opinion of defense attorneys and
the defense strategy.17 Rather, “closing arguments must be restricted ‘to the evidence
presented at trial and the inferences that may fairly be drawn therefrom.’”18
We agree with Rocero that the prosecutor’s choice of words was at times
imprudent. For example, the prosecutor’s repeated assertion that defense counsel
“spoon fed” the defense theory to the defense expert had the potential to disparage the
legitimacy of the defense theory. And the prosecutor’s assertion that the defense’s
arguments amounted to “blowing smoke to cover up what happened” risked impugning
counsel personally.
But the statements need to be understood in context. From the argument
as a whole, it is clear that the prosecutor was grounding these assertions in his overall
argument that there was little to no evidence — aside from the defense expert’s
testimony — to support the defense theory.
Moreover, this case was unusual in that defense counsel expressly told the
jury in closing argument that “the trial defense literally changed during trial” after he
heard Brown’s testimony and determined that dog bites had caused Wegener’s injuries.
The defense expert testified that, prior to his review of the case, he “was told” by
defense counsel that dogs had attacked Wegener before he fell down the stairs, and he
acknowledged that he did not hear any other witness testify to that version of events.
While the expert testified that he did his own independent review of the photographs,
reviewed the medical examiner’s report, and did not reach his conclusion based only on
what defense counsel told him, he also stated that he had not listened to the testimony
16 Rossiter v. State, 404 P.3d 223, 226 (Alaska App. 2017) (quoting Williams v. State,
789 P.2d 365, 369 (Alaska App. 1990)).
17 See Hess v. State, 435 P.3d 876, 882 (Alaska 2018).
18 Id. at 881 (quoting Patterson v. State, 747 P.2d 535, 538 (Alaska App. 1987)).

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of the medical examiner and had no experience evaluating hammer wounds. In short,
the prosecutor was not plainly disparaging the legitimacy of Rocero’s defense theory
generally, but the lack of evidence to support it.
As part of his claim that the prosecutor improperly disparaged defense
counsel and the defense expert, Rocero also takes issue with the prosecutor stating
during rebuttal, “That’s essentially what this comes down to is ‘let’s create reasonable
doubt by making things up.’” As an initial matter, we note that Rocero challenges this
comment as if it were made in reference to the defense expert, but this comment was
made in a different context — challenging defense counsel’s assertion in closing
argument that the owner of the dogs was partially to blame for Wegener’s death, when
there was no evidence that the dogs’ owner was even present at the scene.19
In any event, while the statement was certainly inartful in that it could be
interpreted as accusing defense counsel personally of “making things up,” as opposed
to simply noting inconsistencies between the defense arguments and the evidence, the
prosecutor made the statement at the end of a series of responses to the defense closing
in which the prosecutor pointed out inconsistencies between the arguments and the
evidence. And immediately after making the statement, the prosecutor told the jury that
it was “[their] job . . . to look at the evidence that has actually been presented, not
speculative theories that don’t follow along with that evidence.”
As we noted previously, defense counsel did not object to the prosecutor’s
argument, or seek a cautionary instruction. And, when considered within the broader
context of closing argument, Rocero has not established that these statements constitute
plain error.
19 Brown testified that the dogs’ owner was out of the house at the time.

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The prosecutor’s statements in closing argument, taken as a whole,
do not constitute plain error
Rocero argues that the cumulative effect of the improper statements
rendered his trial fundamentally unfair, requiring reversal.20
We disagree. The statements regarding Rocero’s appearance and Brown’s
credibility were brief and isolated comments, and in both instances, the prosecutor
referred the jury back to the evidence and to their role as factfinders. The prosecutor
used problematic language with respect to the defense theory but his overarching
argument was grounded in the evidence presented throughout trial and not plainly the
prosecutor’s personal opinion of defense counsel or the defense theory.21 And here
again, the prosecutor emphasized the jurors’ role as factfinders.
The superior court also instructed the jury on its role as factfinders.
Specifically, the court instructed the jury that they could not consider the arguments of
counsel as evidence and that they were the “sole judges of the credibility of the
witnesses.”22
When viewing the disputed statements in the context of the closing
arguments as a whole and the evidence presented at trial, we conclude that Rocero has
not established that the arguments were prejudicial and constituted plain error entitling
him to reversal of his convictions.
20 See Rogers v. State, 280 P.3d 582, 589-90 (Alaska App. 2012) (considering whether
prosecutor’s misconduct in closing argument was so egregious that it undermined the
fundamental fairness of the trial).
21 See Hess, 435 P.3d at 881-82.
22 Cf. Goldsbury v. State, 342 P.3d 834, 839 (Alaska 2015) (noting that jury
instructions “were sufficient to cure any harm” which may have come from a prosecutor’s
comment on defendant’s failure to testify, where comment was “not so inflammatory as to
be incurable by instruction”).

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Rocero’s claim that his evidence tampering conviction suffered from a
fatal variance
Rocero next challenges, as a fatal variance, his conviction for tampering
with physical evidence, arguing that the jury convicted him of a different act of evidence
tampering than that presented to the grand jury.
At the grand jury proceeding, the State presented evidence that Rocero
had cleaned up blood in the hallway where Wegener was attacked as the basis for the
evidence tampering charge. The prosecutor instructed the grand jury that Rocero should
be indicted on this charge if he knowingly “destroyed, mutilated, altered, suppressed,
concealed, or removed physical evidence with intent to impair its verity or availability
in an official proceeding or a criminal investigation.” The grand jury indicted Rocero.
At trial, the State again relied on evidence that Rocero wiped down the
hallway as the basis for the evidence tampering charge. In his opening statement and
closing argument, the prosecutor explained that the tampering charge “is based off the
cleanup” and “comes from the wipe-down that . . . Brown testified about.”
The elements instruction for the evidence tampering charge (Instruction
No. 23) stated:
To prove that the defendant committed this crime, the State
must prove beyond a reasonable doubt each of the following
elements:
1) the defendant knowingly destroyed, mutilated,
altered, suppressed, concealed, or removed
physical evidence; and
2) the defendant did so with the intent to impair the
physical evidence’s verity or availability in an
official proceeding or criminal investigation.
During jury deliberations, the jury sent the following question to the
superior court: “If [Rocero] was involved in the [a]lledged [sic] crime, [b]y not
preventing the ‘planned’ [d]isposal of [Wegener’s] body[,] [d]oes this fact constitute
grounds for satisfying the terms of Count #4” (the evidence tampering charge)?

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The court convened to discuss an appropriate response to the jury’s
question. Defense counsel stated, “I think the obvious answer is ‘no,’ but they — seems
like they could figure that out.” The court and the parties agreed that the court could not
tell the jurors outright that they were prohibited from considering that conduct as the
basis for evidence tampering. (As we discuss below, the court could have — and should
have — directly answered this question.)
The court ultimately concluded that its response to the jury’s question
should direct the jury back to the elements instruction for the evidence tampering
charge. The court reasoned that the language of the elements instruction required the
jury to determine whether the defendant had “proactively tak[en] steps, not just st[ood]
by passively,” and thus the answer to the jury’s question was “pretty clear from the
instruction itself.” Both parties agreed with the court’s plan.
The court thus responded to the jury’s question: “The court refers you to
instruction No. 23 for guidance. It is up to you the jury, as finders of fact, to determine
whether or not the [S]tate has proved each element of the crime of Tampering with
Physical Evidence beyond a reasonable doubt.” The court received no further questions
regarding the evidence tampering charge, and the jury returned a guilty verdict on this
count.
On appeal, Rocero argues that the jury convicted him of evidence
tampering based on an act different than the one for which he was indicted by the grand
jury — failing to prevent the planned disposal of Wegener’s body rather than wiping
down blood in the hallway — constituting a fatal variance.
Rocero did not preserve this claim in the superior court. In fact, Rocero
readily agreed the jury could “figure . . . out” on their own that they could not consider
the failure to act as the basis for the evidence tampering charge, and the parties agreed

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that, in response to the jury’s note, the court should just refer the jury back to the
elements instruction. Rocero must therefore show plain error.23
The doctrine of fatal variance protects a defendant’s right to a grand jury
finding on every essential element of the offense.24 Generally, “it is improper to convict
a defendant based on evidence that is materially different from the evidence that
supported the grand jury indictment.”25 Reasonable variations are permitted so long as
the evidence is not materially different and involves the same basic criminal act or
transaction that was considered by the grand jury in issuing the indictment.26
Here, the evidence and elements of the charge presented to the trial jury
were the same as those presented to the grand jury.27 The State repeatedly directed the
jury to only consider whether Rocero wiped down blood in the hallway as the basis for
the evidence tampering charge, just as it had directed the grand jury. The court also
referred the jury back to the elements instruction for guidance on the tampering charge.
This instruction stated that the jury must determine whether Rocero “knowingly
destroyed, mutilated, altered, suppressed, concealed, or removed physical evidence”
and thus directed the jury to determine whether Rocero took affirmative action with
23 See Baker v. State, 22 P.3d 493, 501 (Alaska App. 2001) (noting that plain error
review applied to the defendant’s fatal variance claims because he did not raise the claims
in the superior court).
24 Rogers v. State, 232 P.3d 1226, 1240-41 (Alaska App. 2010).
25 Taylor v. State, 400 P.3d 130, 135 (Alaska App. 2017).
26 See, e.g., Harvey v. State, 604 P.2d 586, 588-90 (Alaska 1979) (concluding that
there was no fatal variance where two witnesses’ trial testimony “differed slightly” from
grand jury testimony, and “the difference was not so great as to unfairly surprise
[defendant]”).
27 Cf. Michael v. State, 805 P.2d 371, 372-74 (Alaska 1991) (finding fatal variance
where the defendant was convicted of second-degree assault based on a theory of breaching
his duty to protect his child, when he was only indicted for first-degree assault based on a
theory that he personally inflicted the injuries).

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respect to the physical evidence, not whether he failed to intervene to prevent an act
(the planned disposal of Wegener’s body) that never happened. This jury instruction
was also consistent with how the State instructed the grand jury to consider the charge.
We find no obvious “departure in the proof from the indictment sufficiently great to be
regarded as a constructive amendment.”28
In its brief, the State contends that this issue is better understood as a claim
of error regarding the court’s response to the jury’s question. Without withdrawing his
fatal variance claim, Rocero adopts the State’s framing of the issue in his reply brief.
We tend to agree with the State that this issue is better understood as a
jury instruction error. But as we noted, Rocero does not raise this claim in his opening
brief; it is raised for the first time by the State in its brief. Moreover, both the parties
and the court concluded that directing the jurors back to the elements instruction would
allow them to reach the proper conclusion that they could not consider Rocero’s
purported failure to “prevent[] the ‘planned’ disposal” of Wegener’s body as a basis for
their verdict.29 It is difficult to find that Rocero was manifestly prejudiced when his own
attorney recognized that the jury could “figure [this] out” on their own.”
We note, however, that we disagree with the apparent belief by the
superior court and the parties that the court was precluded from simply saying “no” to
the jury’s question as to whether Rocero’s alleged failure to prevent the planned
disposal of Wegener’s body could form the basis for the evidence tampering charge.
When the jury is confused about a legal issue, the trial court has “a ‘responsibility to
28 Id. at 373 (quoting 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure
§ 19.2(h), at 469-70 (1984)).
29 Unlike the two second-degree murder charges and the manslaughter charge, the jury
was not instructed on accomplice liability in connection with the evidence tampering
charge.

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give the jury the required guidance.’”30 Here, the State elected a single act as a basis for
the evidence tampering charge — Rocero’s alleged act of wiping down blood. Indeed,
the prosecutor told the jury during closing argument that, “even if you think that there
are other things that would support a tampering charge in this case, you are only able to
find [him] guilty if you determine that Daniel Alex Rocero was cleaning up the blood.”
The court should have instructed the jury that a different act — i.e., the
failure to prevent the “‘planned’ [d]isposal” of Wegener’s body — could not constitute
the basis for finding Rocero guilty of tampering with physical evidence. This posed no
risk of the court making an implicit factual comment on the evidence; it would simply
have recognized, as a legal matter, that Rocero had no notice of that conduct as the basis
for the charge.31 Furthermore, there was no factual unanimity instruction requiring the
jury to unanimously agree on which of the two separate acts formed the basis for the
offense.32
However, under the circumstances of this case (and to the extent this claim
is even sufficiently raised on appeal), we conclude that failing to more directly respond
to the jury’s question and instead referring the jury back to the elements instruction was
not plain error.33
30 Des Jardins v. State, 551 P.2d 181, 190 (Alaska 1976) (quoting Bollenbach v.
United States, 326 U.S. 607, 612 (1946)); see also Alaska R. Crim. P. 30(b) (“The court
shall instruct the jury on all matters of law which it considers necessary for the jury’s
information in giving their verdict.”).
31 See Bowers v. State, 2 P.3d 1215, 1219-21 (Alaska 2000) (holding that the defendant
was prejudiced by the court’s response to a jury note that expressly authorized the jury to
consider a theory of assault on which the State had not relied at trial).
32 See Khan v. State, 278 P.3d 893, 897-99 (Alaska 2012) (discussing the concept of
factual unanimity).
33 See Heaps v. State, 30 P.3d 109, 114 (Alaska App. 2001) (“If a litigant fails to make
a specific and timely objection to a jury instruction or the failure to give a jury instruction,
an appellate court's consideration of the asserted error is limited to plain error review.”);
see also Bowers, 2 P.3d at 1221 (recognizing that, where the court affirmatively instructed

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Conclusion
The judgment of the superior court is AFFIRMED.
the jury during deliberations that it could consider conduct disavowed by the State during
trial as the basis for the charge, the defendant had to “establish both how the timing of the
instruction created a potential for prejudice and specifically how the instruction prejudiced
his defense”); Riley v. State, 515 P.3d 1259, 1269 (Alaska App. 2022) (“Because [the
defendant] did not object to the court’s response to the jury’s question, he must now show
plain error.”).