Phillip Eugene Bigham 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
PHILLIP EUGENE BIGHAM,
Appellant,
v.
STATE OF ALASKA,
Appellee.
Court of Appeals No. A-13604
Trial Court No. 3AN-15-11289 CR
MEMORANDUM OPINION
On Rehearing
No. 7217 — September 16, 2026
Appeal from the Superior Court, Third Judicial District,
Anchorage, Jack W. Smith, Judge.
Appearances: Brooke Berens, Assistant Public Advocate, and
James Stinson, Public Advocate, Anchorage, for the Appellant.
Kenneth M. Rosenstein, 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 Terrell,
Judges.
Judge WOLLENBERG.
A jury found Phillip Eugene Bigham, a former juvenile justice officer at
the McLaughlin Youth Center, guilty of seven counts of first-degree sexual abuse of a
minor, one count of attempted fourth-degree escape, and one count of solicitation of
fourth-degree escape, based on evidence that he engaged in sexual penetration with

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A.G., a resident in the facility, and subsequently tried to help her run away from the
facility.1 Bigham now appeals his convictions.
For the reasons explained in this decision, we reject several of Bigham’s
claims. However, we remand this case for additional litigation with respect to a
discovery issue. We further conclude that the jury’s verdicts for attempted fourth-
degree escape and solicitation of fourth-degree escape should have merged into a
single conviction and that the judgment should be amended to reflect this merger and
to correct several additional errors.
Background facts and proceedings
In 2015, Phillip Bigham was working as a supervising officer in the girls
treatment unit at the McLaughlin Youth Center. Sixteen-year-old A.G. was one of the
residents in this unit. In the summer of 2015, Bigham found A.G. in the midst of a
suicide attempt, and he intervened. A.G. later testified that, after this incident, she and
Bigham developed a “father-daughter” relationship.
After about a year in his position in the girls treatment unit, Bigham was
informed that he likely would not be allowed to continue as a supervisor in that unit.
One of the reasons provided was his inability “to set clear boundaries with residents
and staff,” and of particular concern was his relationship with A.G. In light of his
impending demotion, Bigham resigned from his position entirely, and his last day at
McLaughlin was November 27, 2015.
Shortly after Bigham left, other staff members discovered letters that had
been mailed to A.G. and appeared to include Bigham’s handwriting. These letters
contained detailed escape plans and provided information known only by McLaughlin
staff about internal security measures. A.G. later told the unit supervisor that these
1 AS 11.41.434(a)(2), AS 11.56.330(a)(1) & AS 11.31.100, and AS 11.56.330(a)(1)
& AS 11.31.110, respectively.

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letters were from Bigham and that they had been planning her escape from McLaughlin
over the phone.
During A.G.’s conversation with the unit supervisor, A.G. also disclosed
that “more than one” sexual act had occurred with Bigham before he left the facility.
This led the supervisor to contact the Anchorage Police Department, and a detective
was assigned to investigate.
The detective interviewed A.G., and over the course of several interviews,
A.G. told the detective that Bigham had sexually abused her on four occasions. A.G.
reported that three of these occasions involved fellatio and/or digital penetration, and
that twice Bigham had engaged in penile-vaginal penetration with her.2 A.G. said that
at least two of these incidents occurred in a shed outside of A.G.’s unit at McLaughlin,
and on at least one occasion, the abuse occurred in a basement underneath the unit,
which had low ceilings. A.G. reported that Bigham placed his hands on the basement
ceiling’s ductwork while she performed fellatio; the police found two handprints on
the ductwork (though they could not identify the specific source of these prints). A.G.
also reported that Bigham’s genital area was shaved — a description later verified upon
Bigham’s arrest.
The detective obtained a Glass warrant to record a call between A.G. and
Bigham.3 During the call, Bigham made several incriminating statements related to the
escape plans. In particular, Bigham asked A.G. about the notes she had received,
including whether anyone else had found them, and he advised her to wait until the
following weekend to “go through with [her] plan” since there would be fewer staff
2 A.G. did not disclose the penile-vaginal penetration to the detective until their final
interview. A.G. later testified that she initially was not ready to share all of the details but
that, once she was ready, she requested another interview because she had more
information that she needed to share.
3 See State v. Glass, 583 P.2d 872 (Alaska 1978).

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members on duty then. Bigham told A.G. to try to exit the facility’s gate, and then go
toward the mountains, where he would be waiting for her at a McDonald’s.
Bigham and A.G. also had an exchange about something that took place
while they were together at McLaughlin:
A.G.: — remember in the shed?
Bigham: Uh-huh (affirmative). What? What?
A.G.: It’s just, I don’t know —
Bigham: Remember in the shed what?
A.G.: Everything.
Bigham: Yes. Yeah, what about it?
A.G.: I just can’t stop thinking (indiscernible) —
Bigham: Driving you nuts?
A.G.: Yeah.
Bigham: You excited?
A.G.: Yes.
Bigham: Okay. I am, too.
Based on these allegations, a grand jury ultimately indicted Bigham on
seven counts of first-degree sexual abuse of a minor.4 Bigham was also charged with
4 Bigham was initially indicted on seven counts of second-degree sexual abuse of a
minor. But the State later reindicted Bigham, charging him with seven counts of first-
degree sexual abuse of a minor based on the theory that he engaged in sexual penetration
with A.G., a person under eighteen years of age, when he was her “legal guardian.” See
AS 11.41.434(a)(2). As a juvenile justice officer at McLaughlin Youth Center, Bigham
qualified as A.G.’s “legal guardian.” See former AS 11.41.470(3) (2015) (defining “legal
guardian” to include “a person who is under a duty to exercise general supervision over a
minor or other person committed to the custody of the Department of Health and Social
Services under AS 47.10 or AS 47.12 as a result of a court order, statute, or regulation” —
and also include “Department of Health and Social Services employees . . . and staff
members and other employees of group homes or youth facilities where the minor or other
person is placed as a result of a court order or the action of the Department of Health and
Social Services”).

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attempted fourth-degree escape and solicitation of fourth-degree escape.5
The case proceeded to trial, and A.G. testified. During her testimony, A.G.
had a hard time remembering when the abuse occurred. But she stated that “a lot of
sexual things . . . happened” with Bigham while she was at McLaughlin — things she
did not “want happening to [her]” — including digital penetration, penile penetration,
and touching Bigham’s genitals with her hands and mouth. Through the lead
detective’s testimony, the State introduced A.G.’s prior statements to the detective.
Another detective testified to finding handprints on the basement’s ductwork and to
discovering, when photographing Bigham after his arrest, that Bigham had a shaved
pubic area. The State also introduced the Glass warrant recording.
Ultimately, the jury found Bigham guilty of all charges. This appeal
followed.
Bigham’s claim that his right to be present was violated when he was
absent from jury playbacks and discussion of various communications
with the jury
Bigham argues that his right to be present at all stages of his trial was
violated when the superior court communicated with the jury and authorized various
playbacks of testimony in his absence and without obtaining a personal waiver of his
right to be present.
After the jury began its deliberations, the superior court asked the parties
what they would like to do in the event the jury asked to listen to playbacks of the
witnesses’ testimony. Bigham’s attorney stated that he would like the option to be
present for playbacks. The court therefore did not seek a personal waiver from Bigham
5 Bigham was initially indicted on one count of attempted second-degree escape and
one count of solicitation of second-degree escape, but the State reduced these charges to
attempted fourth-degree escape and solicitation of fourth-degree escape. Bigham was also
indicted on one count of official misconduct under AS 11.56.850, but the State later
dismissed this charge.

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of his right to be present, and Bigham did not waive his presence at future playbacks.
Rather, the court told defense counsel, “If Mr. Bigham wishes to be either on the phone
with you, or present in the courtroom, you just need to let me know . . . and we can
wait till the two of you show up in court if you want to do that.”
During deliberations, the jury made four separate requests.6
First, the jury asked to relisten to the Glass warrant audio and to rehear
A.G.’s testimony. The superior court contacted the attorneys by phone. The court asked
defense counsel whether Bigham was with him, and the attorney informed the court
that he was not. The court responded, “Okay. At some point, if you feel [Bigham]
needs to be brought into this, let me know.” Counsel did not respond to this point.
The court then proceeded to discuss the jury’s request with the attorneys.
The court asked defense counsel if he and Bigham wished to be present for the
playback, to which the attorney responded, “No. That’s all right.” Given defense
counsel’s position, the prosecutor also elected not to attend the playback.
Second, the jury sent a note seeking clarification of the “on or about”
language in the indictment as it related to the dates of the sexual abuse charges. The
court again contacted the attorneys by phone and asked defense counsel whether
Bigham was with him. The attorney responded, “No. That’s all right. I’ll be in touch
with him soon.” The court and the attorneys then discussed and finalized a response to
the jury’s question.
Third, the jury notified the court that it was having trouble opening an
audio CD that was provided by the State. The court called defense counsel but did not
inquire about Bigham’s presence. The prosecutor was in the courtroom. The court
directed the parties to work together to convert the file into a format that could be
opened by the jury.
6 The jury additionally asked for some dry erase markers to use on the whiteboard.

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Finally, the jury asked to rehear the testimony of the lead detective (the
detective who interviewed A.G.). The prosecutor was again in the courtroom, with
defense counsel on the phone. The court did not inquire about Bigham’s presence. The
attorneys elected not to be present for the playback.
In Alaska, a criminal defendant has a constitutional right to be present in
the courtroom at every stage of their trial.7 The right to be present includes both the
trial proceedings themselves and also “any type of communication [that] occurs
between the court and the jury during its deliberations”8 — e.g., when a jury listens to
a playback9 or when the court gives an additional instruction to the jury.10
A defendant who waives their right to be present at trial must do so
knowingly and intelligently.11 Because the right to be present is personal to the
7 Lee v. State, 509 P.2d 1088, 1089-90 (Alaska 1973); Wamser v. State, 652 P.2d 98,
101 n.10 (Alaska 1982); Dolchok v. State, 639 P.2d 277, 283 (Alaska 1982); see also
Alaska R. Crim. P. 38(a) (“A defendant charged with a felony offense shall be present at a
felony first appearance, an arraignment, any hearing where evidence will be presented, a
change of plea hearing, at every stage of trial, including the impaneling of the jury and
return of the verdict, at a sentencing hearing, and at a hearing on an adjudication or
disposition for a petition to revoke probation.”).
8 State v. Hannagan, 559 P.2d 1059, 1064 (Alaska 1977) (first citing Gafford v. State,
440 P.2d 405, 417 (Alaska 1968); and then citing Noffke v. State, 422 P.2d 102, 105 (Alaska
1967)); see also Wamser, 652 P.2d at 101 (discussing Dixon v. State, 605 P.2d 882, 884
(Alaska 1980)); Alaska R. Crim. P. 38(a).
9 See Hannagan, 559 P.2d at 1064.
10 See, e.g., Jones v. State, 719 P.2d 265, 266-67 (Alaska App. 1986); Noffke, 422 P.2d
at 105.
11 Hannagan, 559 P.2d at 1064 (“[T]here is a constitutional requirement that the
defendant personally waive his right to be present at trial in a knowing and intelligent
manner. Absent the defendant’s express waiver, an attorney may not waive this right for
his client.”).

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defendant, an effective waiver generally requires the defendant’s personal participation
and should be on the record.12
In certain circumstances, however, a defendant may waive their right to
be present at trial through their attorney. In Lee v. State, the Alaska Supreme Court set
out three ways in which a criminal defendant may knowingly and intelligently waive
their right to be present through their attorney:
(1) the defendant has given counsel express authority in a
knowing and intelligent manner, (2) the defendant is present
at the time of the waiver, has clearly been informed of his
rights, and remains silent, or (3) the defendant subsequently
acquiesces in the proceedings in a knowing and intelligent
manner.[13]
Here, there is little in the record to show that Bigham waived his right to
be present, either directly or through his attorney. The court did not obtain a personal,
on-the-record waiver from Bigham of his right to be present. And the record does not
reflect a waiver through Bigham’s counsel. During discussion of the playback requests
and other notes from the jury, defense counsel did not indicate that he had express
authority to waive Bigham’s presence or proceed in his absence, nor did he give any
12 See Cunningham v. State, 408 P.3d 1238, 1247 (Alaska App. 2017) (stating “trial
judges should be mindful . . . that any waiver of [the right to presence] should take place
on the record”); Elsey v. State, 1992 WL 12153176, at *4 (Alaska App. May 20, 1992)
(unpublished) (recognizing that “[b]ecause the right to presence is personal to the
defendant and the defendant alone is empowered to waive it, an effective waiver of the
right ordinarily requires the defendant’s personal participation”).
13 Lee v. State, 509 P.2d 1088, 1092 (Alaska 1973) (holding that the attorney’s waiver
of the defendant’s right to be present at the return of verdict was invalid since there was no
evidence of “express authorization . . . [or] acquiescence to the waiver by [the defendant]”);
see also Hannagan, 559 P.2d at 1064-65 (attorney’s waiver of defendant’s right to be
present during playbacks without defendant’s knowledge was invalid); Elsey, 1992
WL 12153176, at *4 (defendant’s knowing acquiescence in attorney’s waiver of
defendant’s right to be present during discussion of jury inquiries rendered the waiver
valid).

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indication that Bigham was aware of the proceedings and understood his right to be
present.
The State argues it is possible that Bigham effectively waived his right to
be present in a manner not disclosed on the record and asks us to remand for an
evidentiary hearing to determine whether Bigham waived his right to be present. While
a remand might be appropriate under certain circumstances,14 we question whether a
remand would be appropriate here, given the absence of any on-the-record indication
of an explicit or implicit waiver, express consent for the attorney to proceed in
Bigham’s absence, or Bigham’s acquiescence in the proceedings.15
14 See, e.g., Jonas v. State, 773 P.2d 960, 969-70 (Alaska App. 1989) (where defendant
claimed a proceeding occurred outside his personal presence, case was remanded for
findings as to what, if anything, happened outside defendant’s presence); Jones v. State,
1984 WL 908613, at *1 (Alaska App. Aug. 29, 1984) (unpublished) (remanding for
evidentiary hearing to resolve dispute as to whether the parties were aware of and present
for discussion of a substantive jury note to the judge); see also State v. Martin, 695 N.W.2d
578, 586-87 (Minn. 2005) (remanding for additional development of the record regarding
the nature of jury communications from which the defendant was absent); Thompson v.
State, 12 So. 3d 723, 727-28 (Ala. Crim. App. 2008) (remanding for an evidentiary hearing
where the trial court had concluded that defendant’s absence from a portion of trial was
voluntary but the record did not contain evidence supporting that conclusion); Champ v.
State, 854 S.E.2d 706, 716-17 (Ga. 2021) (remanding for an evidentiary hearing and factual
findings, where the defendant raised a right-to-be-present claim for the first time on appeal
and there was a significant question as to whether the defendant acquiesced to his absence
from the relevant bench conferences).
15 See Lee, 509 P.2d at 1090 (“Courts have been most reluctant to find that a
defendant’s absence is ‘voluntary’ in the absence of clear evidence on the record that he
knew of the proceedings and exercised a decision to stay away.”); Hannagan, 559 P.2d at
1061, 1065 (holding that, where defense counsel told the court that the defendant’s
presence during playback of testimony was unnecessary and the attorney sought to “waive
any problems in that respect” without conferring with the defendant, the waiver was
ineffective and the defendant’s right to be present at the playback was violated); see also
Taylor v. Illinois, 484 U.S. 400, 417-18 & n.24 (1988) (recognizing that “there are basic
rights that the attorney cannot waive without the fully informed and publicly acknowledged
consent of the client,” and citing as one example the right to be present at trial).
The State cites the supreme court’s decision in Wamser v. State in support of its
request for an evidentiary hearing. But in Wamser, the supreme court remanded the case

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We conclude, however, that we need not resolve this issue in this case
because even assuming Bigham did not waive his constitutional right to be present, his
absence from the playbacks and the discussion of the additional instruction to the jury
was harmless beyond a reasonable doubt.16
Bigham argues that he was prejudiced by his absence from the
proceedings in three ways — the first relates to the playback of A.G.’s testimony, the
second relates to the court’s instruction regarding the “on or about” language, and the
third relates to the playbacks of both A.G.’s and the lead detective’s testimony.
(Bigham does not argue that he was prejudiced by the discussion of the non-functional
audio CD outside of his presence.)
First, Bigham argues that he was prejudiced during the playback of A.G.’s
trial testimony, when the court clerk mistakenly played a portion of a brief competency
inquiry that the court had conducted outside the presence of the jury before A.G.
testified.17 Specifically, the jury heard the following exchange for the first time during
playback:
Court: And, Ms. [G.], can you tell me how old you
are?
A.G.: I’m nineteen.
Court: Nineteen now. Okay. And how far did you go
in school?
for a new trial, not an evidentiary hearing, after determining that the defendant’s right to
be present had been violated and the State had failed to prove that the error was harmless
beyond a reasonable doubt. Wamser v. State, 652 P.2d 98, 102-03 (Alaska 1982). In
Wamser, a jury note indicating that the jury was deadlocked was never delivered to the trial
judge by the bailiff, nor communicated to the parties. Id. at 99-100, 102.
16 See Dixon v. State, 605 P.2d 882, 884 (Alaska 1980).
17 Prior to trial, Bigham had questioned A.G.’s competency to testify after receiving
information that A.G. had been hospitalized. The court agreed to conduct an inquiry, and
prior to A.G.’s testimony, the superior court asked A.G. a brief series of questions to assess
her capacity to provide truthful testimony.

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A.G.: I graduated with twenty-seven cred — twenty-
seven credits.
Court: Okay. So you graduated from high school?
A.G.: Yes.
Court: Okay. Have you gone to school any since then?
A.G.: Huh?
Court: Have you been to any further school since you
graduated from high school?
A.G.: No.
Court: Okay.
A.G.: But I’m planning on it.
Court: Okay. All right. And this is going to sound like
an odd question, but I need to know the answer. Do you
understand the difference between telling the truth and
telling a lie?
A.G.: Yes.
Court: Okay. And you understand when you’re under
oath in a court proceeding, you’ve got to tell the truth. You
understand that?
A.G.: Yes.
Court: Okay.
The playback audio then reflected the court asking the parties whether they had any
additional questions they wished to ask A.G.
At that point during the playback, one of the jurors spoke up, stating, “We
weren’t there when she was saying this[.]” Another juror informed the clerk, “Don’t
worry about that.” The clerk skipped ahead and played one last question (the last
question of the competency inquiry):
Court: And do you know who the President of the
United States is at the current time?
A.G.: Donald Trump.
The playback audio then reflected the jury’s return to the courtroom and the
commencement of A.G.’s direct examination, for which the jury had been present.

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On appeal, Bigham argues that this exchange unfairly bolstered A.G.’s
credibility. But the court’s questions to A.G. were little more than general preliminary
questions as well as a reaffirmation of the witness oath to which the jury heard A.G.
swear before she provided her testimony — i.e., that she promised to testify truthfully,
to tell “the truth, the whole truth, and nothing but the truth.”18 The court’s inquiry was
brief, and the court did not make any findings on the record regarding A.G.’s credibility
or capacity to testify accurately.
Moreover, after a portion of the improper voir dire testimony was played,
one of the jurors spoke up and alerted the clerk that the jury had not been present for
this portion of the testimony. Another juror said not to worry about that part. In other
words, this was not the portion of the testimony the jury wanted to hear, and they were
well aware it was not part of the evidence before them.
We therefore conclude that the playback of this portion of A.G.’s brief
voir dire testimony was harmless beyond a reasonable doubt.
Second, Bigham argues that he was prejudiced by the superior court’s
substantive response to the jury’s question regarding the phrase “on or about”
contained in the charges. After the jury requested clarification of the definition of “on
or about” with respect to the dates of the offenses, the court discussed this request with
the prosecutor and the defense attorney. The court ultimately instructed the jury as
follows, without objection by the parties:
The phrase “on or about” indicates the alleged offense
occurred on or around the date indicated. The exact date
need not be proven. Where it is alleged there is evidence of
a similar act on successive days, such as Count I and Count
IV or Count II and Count V, and the charges are written as
“on or about,” in order to return a verdict of guilty on each
of the similar counts, the jury must be unanimous as to the
specific conduct that has been proven beyond a reasonable
18 See Alaska R. Evid. 603 (“Before testifying, every witness shall be required to
declare that the witness will testify truthfully[.]”).

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doubt for each count. Although charged as occurring on or
about a certain date, guilty verdicts on Count I and Count IV
cannot be given for the same incident. Similarly, guilty
verdicts on Count II and Count V cannot be given for the
same incident.
On appeal, Bigham does not argue that this instruction was erroneous.
Rather, he argues that had he been personally present for the court’s discussion of the
instruction with the parties, it is “highly probable” that he would have asked for a more
favorable instruction from the court — e.g., he would have asked for the court to
instruct the jury that “on or about” should be read narrowly, or to remind the jury that
it can consider conflicting evidence when weighing a witness’s credibility.
But we have recognized that “when a trial court considers purely legal
matters [at a hearing with the prosecutor and defense counsel], a defendant’s presence
is unlikely to influence the result,” as there is little chance that a defendant would
personally perceive and raise purely legal issues.19 The question is whether the record
establishes “some reasonable possibility that the trial judge’s rulings would have been
more favorable to [the defendant] if he had participated.”20
19 Graham v. State, 1998 WL 90889, at *5, *8 (Alaska App. Mar. 4, 1998)
(unpublished) (citing Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (holding that the
defendant’s due process right to be present was not violated when the defendant was
excluded from an in-chambers hearing to determine the competency of two child
witnesses)); Dolchok v. State, 639 P.2d 277, 284-85 (Alaska 1982) (holding that the
defendant’s exclusion from a pretrial conference at which only legal matters were
discussed was harmless error); Jonas, 773 P.2d at 970 (defendant’s absence from pretrial
conference at which the parties alerted the court to anticipated evidentiary issues was
harmless where the defendant’s presence “could have in no way aided his defense”); see
also Kugzruk v. State, 436 P.2d 962, 964-66 (Alaska 1968) (holding that defendant’s
personal absence from multiple anteroom conferences, without objection by his counsel,
was not obviously prejudicial under plain error standard).
20 Graham, 1998 WL 90889, at *7; see also People v. Coleman, 909 N.E.2d 952, 964
(Ill. App. 2009) (concluding that the defendant’s personal absence from discussion of the
jury’s note requesting a definition of “abet” was harmless beyond a reasonable doubt where
the court gave an accurate instruction with the concurrence of defense counsel); McKenzie
v. State, 687 N.W.2d 902, 906 (Minn. 2004) (holding that the defendant’s personal absence

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Here, Bigham’s attorney was present and engaged with the court
regarding the additional instruction to be provided to the jury. And, ultimately, the jury
was properly instructed on the “on or about” language in the indictment. There is little
possibility that Bigham’s presence would have led to a different, more favorable
instruction.
Relying on our decisions in Jones v. State and Carpenter v. State, Bigham
argues that, in assessing harmlessness, the focus is “on the type of action taken by the
court in the defendant’s absence, not the propriety of that action.”21 But Jones and
Carpenter involved situations where the trial court engaged in an ex parte
communication with the jury, crafting a response to a jury’s inquiry without any input
from the attorneys or the defendant.22 Rightfully, the question in that instance must
focus on the type of issue addressed by the court and the failure to allow the defense
to offer “comments, suggestions, and objections to guide both the substance and
from discussion of jury notes was harmless beyond a reasonable doubt where the trial court
conferred with defense counsel, responded consistent with defense counsel’s input, and the
responses were “appropriate” and provided no new information to the jury).
21 Jones v. State, 719 P.2d 265, 267 (Alaska App. 1986) (emphasis added); accord
Carpenter v. State, 408 P.3d 1235, 1237 (Alaska App. 2017).
22 Jones, 719 P.2d at 266-67 (holding that ex parte communication between the court
and the jury as to the meaning of a concept critical to the trial was reversible error);
Carpenter, 408 P.3d at 1237-38 (concluding that court’s ex parte response to jury that
reported it was hung was reversible error); see also Wamser v. State, 652 P.2d 98, 101 &
nn.12-13 (Alaska 1982) (recognizing that “a trial judge’s response to a jury communication
without notice to the defendant and his counsel and a hearing on the record is error” and
collecting cases); Dixon v. State, 605 P.2d 882, 883-84, 887-89 (Alaska 1980) (holding that
judge’s ex parte denial of jury’s request to hear playback of all of complaining witness’s
and defendant’s testimony, while offering to locate portions of the testimony over which
there was disagreement by the jury, was reversible error); Cox v. State, 575 P.2d 297, 300-
01 (Alaska 1978) (holding that judge’s ex parte communication to the jury, denying their
request to hear playback testimony by two alibi witnesses crucial to the defense, was not
harmless beyond a reasonable doubt).

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phrasing of the court’s response to the jury’s request.”23 Here, however, Bigham’s
attorney was present and offered comments and suggestions to guide the court’s
response, to which both attorneys ultimately agreed.
For these reasons, we conclude that any error in responding to the jury’s
question without Bigham’s personal presence was harmless beyond a reasonable
doubt.
Finally, Bigham argues that he was prejudiced when he was not present
for the playbacks of A.G.’s and the lead detective’s testimony because the jury elected
to only rehear portions of these witnesses’ testimony. Specifically, the jury listened to
A.G.’s direct examination and portions of the detective’s direct, redirect, recross, and
final redirect examinations. The jury did not listen to A.G.’s cross-examination,
redirect, or recross, or to the detective’s initial cross-examination. (As we noted, when
contacted by the court, Bigham’s attorney chose not to be present for both of these
playbacks.)
Bigham claims that had he been personally present during these
playbacks, he would have objected to the jury listening to only portions of the
testimony, and he would have insisted the jurors also listen to the witnesses’ entire
cross-examinations. But Bigham does not argue that he would have been entitled to
insist that the jury relisten to the full testimony.24 Bigham also does not allege that the
portions of testimony the jury reheard were misrepresentative of the overall testimony
23 Jones, 719 P.2d at 267 (quoting Wamser, 652 P.2d at 101-02).
24 See Ripley v. State, 590 P.2d 48, 51-52 (Alaska 1979) (recognizing that the trial
court had discretion to decide whether to require the playback of cross-examinations when
the jury only requested to hear direct examination); cf. Hoffman v. State, 950 P.2d 141, 146
n.1 (Alaska App. 1997) (observing that telling a jury which requested a partial playback
that they could only listen to the witness’s complete testimony could have “the effect of
discouraging the jury from pursuing its request for playbacks”).

– 16 – 7217
or that they placed “undue emphasis” on the State’s case.25 And in any event, there is
no indication that, had the jury reheard the respective cross-examinations, there is a
“reasonable possibility” that it would have “had an impact on the jury’s deliberative
process.”26
In sum, even assuming Bigham did not validly waive his right to be
present during playbacks and during the time when the superior court crafted its
response to the jury’s question, this error was harmless beyond a reasonable doubt
under the circumstances of this case.
Bigham’s claim that the superior court improperly restricted his cross-
examination of A.G.
At trial, A.G. was a reluctant witness, and her frustrations were evident to
the court and the parties. During her direct examination, the court ruled that A.G. was
a hostile or reluctant witness and allowed the prosecutor some leeway in asking leading
questions. A.G. testified to several acts of sexual penetration and sexual contact with
Bigham, but she also frequently indicated that she did not know or did not remember
what happened and was presented with her prior statements to the detective. During
her cross-examination, A.G. repeatedly testified that she did not want to be in the
courtroom and did not want to be testifying.
At one point during her cross-examination, when A.G. declared that she
did not want to testify, the judge excused the jury to allow A.G. to take a moment away
from testifying. The judge then had the following exchange with A.G. outside the
presence of the jury:
25 Richardson v. State, 579 P.2d 1372, 1374 (Alaska 1978).
26 Cunningham v. State, 408 P.3d 1238, 1245 (Alaska App. 2017); see also Jones, 719
P.2d at 267; Graham v. State, 1998 WL 90889, at *5-9 (Alaska App. Mar. 4, 1998)
(unpublished).

– 17 – 7217
Court: All right. Take a moment, Ms. [G]. We’re still
on record, but based —
A.G.: I am ready to get this over and done with. I’m
tired of my head being fucked with this fucking family.
Court: I understand. I understand. And the more you
can answer questions and move along —
. . . .
A.G.: No, I don’t. You guys are fucking — fucking
retarded.
Court: Okay.
A.G.: The whole fucking thing.
Court: I understand.
A.G.: The out — the fucking satellites — everything.
What you guys did to my family — fucking state, you
bitches.
Court: Okay. And I apol —
A.G.: We’re on record. What else, huh?
Court: Okay. I don’t know what happened with your
family. But —
. . . .
Court: If you want to get this done, then we need you
—
A.G.: I want this over and done with.
Court: I understand. So the quicker —
A.G.: No, you don’t —
Court: — we can get the questions —
A.G.: — understand. It’s not even court ordered. It’s
not even subpoenaed. It’s not even anything.
Court: Okay.
A.G.: It’s all fake — everything.
Court: Okay. Well, when you tell me you’re ready to
go forward, we’ll —
A.G.: I’m not —

– 18 – 7217
Court: — bring in the jury.
A.G.: — ready to go forward.
Court: Okay. All right. We’ll wait —
A.G.: Okay —
Court: — till you’re ready.
A.G.: — I’m ready to go forward.
Court: Okay. Let’s bring in the jury.
During this exchange, A.G. was obviously upset and emotional, at various
times raising her voice and expressing clear frustration.
After Bigham’s counsel resumed his cross-examination, he asked A.G.
about the statements she had made during the break while the jury was excused.
Specifically, defense counsel asked A.G. what she meant when she stated that the “State
did something to [her] family.” The prosecutor objected, and the court held a bench
conference.
The court ruled that A.G.’s statement regarding what the State did to her
family was irrelevant, and that A.G. had been “obviously upset.” Defense counsel
acknowledged he did not know the relevance, but he argued that “it seemed relevant to
[A.G.]” The court told defense counsel that he could investigate what A.G. meant
outside the proceeding, but that he could not ask about that statement in front of the
jury. (Counsel apparently never revisited this issue, and Bigham does not challenge the
preclusion of this questioning on appeal.)
After resuming cross-examination, defense counsel asked A.G. if it was
true that she had said “it’s all f-ing fake” while the jury was excused. (A.G. had actually
said, “It’s all fake — everything.”) The prosecutor again objected, and the court again
held a bench conference. The court questioned the relevancy of the statement, asking
defense counsel whether he had any idea what A.G. meant when she said this.
Bigham’s attorney explained that the statement “speaks for itself” and that he was
“suggesting that it’s all fake, like she said.” But the attorney made no request to ask

– 19 – 7217
A.G. what she meant or to further elaborate outside the presence of the jury. The court
ruled that the attorney could not ask A.G. about her statement.27
On appeal, Bigham claims that A.G. could have been referring to the
allegations against him — i.e., that they were “all fake” — and argues that the court
erred in precluding him from cross-examining A.G. about this statement.
Viewed in a vacuum, Bigham’s argument has some appeal. Trial courts
must be “particularly solicitous toward cross-examination that is intended to reveal
bias, prejudice, or motive to testify falsely.”28 If A.G.’s statement that “it’s all fake”
related to her allegations, then clearly this statement would have been an appropriate
topic for cross-examination.
But Bigham is taking A.G.’s statement out of context. There is no
indication in the record that, when A.G. made this statement, she was referring to the
truth of her accusations against Bigham. A.G.’s statement took place during an
emotional outburst in which she expressed annoyance and frustration with the
27 We wish to note one problem with the way the transcript depicts this bench
conference exchange. The transcript shows that the prosecutor sought to confirm that
defense counsel was “suggesting [A.G.] was attempting to recant her allegations.” Next,
A.G. said something indiscernible, followed by “Let’s — let’s do that.” On the face of the
transcript, A.G.’s statement could be read to suggest that she was agreeing with the
prosecutor’s characterization and in fact trying to recant her allegations. Indeed, Bigham’s
briefs characterize A.G.’s response as reflecting her agreement that she was trying to
recant.
We have listened to the trial audio, which reveals that, after the prosecutor’s
confirmation that defense counsel was referring to a recantation, A.G. spoke for
approximately eight seconds, all of which is indiscernible. Only after the eight seconds of
indiscernible speech did A.G. say, “Let’s do that.” Thus, it is not at all clear from the audio
that A.G. was responding to the prosecutor’s characterization of her statement as a
recantation when she said, “Let’s do that.” We note that no one present at trial ever
referenced A.G.’s statement of “let’s do that,” let alone characterized it as indicating that
A.G. was agreeing that she had been trying to recant the allegations.
28 Cleveland v. State, 258 P.3d 878, 884 (Alaska App. 2011) (quoting Wood v. State,
837 P.2d 743, 745 (Alaska App. 1992)).

– 20 – 7217
questions she was being asked and the judicial process to which she had been
subjected. Immediately before the court took a break and sent the jury out of the room,
A.G. had become upset by defense counsel’s questioning on topics which she clearly
felt were not relevant to the trial. She then told the court, “I am ready to get this over
and done with,” before asserting moments later, “It’s not even court ordered. It’s not
even subpoenaed. It’s not even anything.” It was only in the context of these
frustrations that A.G. declared, “It’s all fake — everything.” There was no indication
that A.G. was referring to the truth of her accusations against Bigham.
Indeed, A.G.’s subsequent testimony refutes any notion that she was
recanting her allegations. At the very end of defense counsel’s cross-examination,
counsel asked A.G., “Did you ever tell anybody that you lied about these allegations?”
A.G. responded, “No.” Then, on redirect examination, the prosecutor asked A.G.
whether she had been “lying” during her direct examination the previous day. A.G.
testified that she was not lying when she testified regarding the allegations of sexual
abuse, and that she had not lied or invented anything when she previously disclosed
the abuse to the detective during her interviews. (She testified that, while she did not
disclose everything to the detective during their initial interviews, by the final
interview, she “said everything” that had happened.) Interpreting A.G.’s statement,
“It’s all fake,” as a recantation would be inconsistent with this testimony.
Ultimately, the trial court heard the statement in the moment it was made
and was in the best position to evaluate its meaning.29 It is clear that the court did not
interpret A.G.’s statement as a recantation, and Bigham’s attorney offered nothing
29 See id. (“We generally review a trial court’s ruling regarding the limits of cross-
examination for abuse of discretion.”); see also Wahl v. State, 441 P.3d 424, 430 (Alaska
2019) (recognizing that the trial court’s exclusion of evidence is reviewed for an abuse of
discretion — that is, whether the decision was “arbitrary, capricious, manifestly
unreasonable, or stemmed from an improper motive” (internal quotation marks omitted)
(quoting Lindbo v. Colaska, Inc., 414 P.3d 646, 651 (Alaska 2018))).

– 21 – 7217
more beyond, “I think it [i.e., the statement] speaks for itself.” And Bigham never
sought to further develop this issue outside the presence of the jury.
But even assuming the court should have permitted Bigham to ask A.G.
whether she made this statement, we conclude that this error does not require reversal.
As we noted above, although defense counsel was precluded from asking A.G. about
her statement during the break, he was not precluded from directly asking her whether
she had ever recanted, and he did. A.G. repeatedly confirmed she was not lying about
the allegations. And the defense attorney also asked questions that sought to probe
A.G.’s motive to lie — namely, whether she was seeking to get out of trouble at
McLaughlin or reap a financial benefit from a related civil lawsuit.
Moreover, to the extent A.G.’s statement demonstrated her general
frustrations toward the proceedings, her animosity toward the entire process was
already readily apparent to the jury. During her testimony before the jury, she said, at
various times, “I don’t want to talk about this at all. I don’t want to be . . . in this
courtroom at all,” “I don’t want to continue this,” “I fucking hate this courtroom,”
“This is so fucking stupid,” and “I don’t want to do this.” Immediately after she said,
“I don’t feel comfortable with this . . . . I don’t want to do this,” the court took the
break at which A.G. said, “I want this over and done with. . . . It’s not even court
ordered. It’s not even subpoenaed. It’s not even anything. . . . It’s all fake —
everything.” And the court granted the prosecutor permission to treat A.G. as a hostile
witness, reflecting the fact that A.G.’s reluctance to testify was readily apparent to
those in the courtroom.
For all these reasons, we conclude that any error in limiting Bigham’s
cross-examination of A.G. about the comment she made outside the jury’s presence
was harmless, and we reject this claim of error.

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Bigham’s claim that the superior court failed to disclose all relevant
sealed records
Prior to trial, Bigham sought to compel the production of records from the
Office of Children’s Services (OCS) regarding “any claims made by A.G. of sexual
abuse or official misconduct by anyone and the investigation and subsequent
evaluation of those claims.” In support of this request, Bigham’s attorney alleged that
a defense investigation had revealed that A.G. had a history of falsely reporting
incidents of sexual abuse. Through counsel at the Office of Victims’ Rights, A.G.
opposed Bigham’s request.
The superior court ultimately granted Bigham’s request for review of the
OCS records, finding that the records “may contain relevant information that is
material to the defendant’s defense.” After reviewing the OCS documents in camera,
the court released sixteen pages of redacted documents to the parties. The court
reserved ruling as to whether any of the information was admissible at trial.
The disclosed records revealed that A.G. had previously accused her
stepfather of sexually abusing her in 2012 (three years prior to the incidents alleged in
this case). Her stepfather denied the allegation, and according to the documents, the
police investigated the report but declined to pursue charges because of inconsistencies
in A.G.’s reports and the absence of corroborating information.
Despite detailed information about these allegations and suggestions that
A.G.’s reports against her stepfather had not been credited, Bigham’s attorney never
sought to litigate the admissibility of these allegations at trial. He did not file a pretrial
motion to admit the evidence under Morgan v. State — i.e., he did not request a hearing
to prove that A.G.’s allegations were false30 — nor did he argue that there was any
other basis for admitting evidence of these allegations. And at trial, Bigham’s attorney
did not seek to introduce evidence of A.G.’s prior allegations against her stepfather.
30 See Morgan v. State, 54 P.3d 332, 333 (Alaska App. 2002).

– 23 – 7217
The OCS records disclosed to Bigham also revealed an allegation in which
A.G. reported that a male staff member at North Star Residential Treatment had
molested her when she was admitted for treatment. At trial, defense counsel did seek
to question A.G. and A.G.’s McLaughlin unit supervisor about A.G.’s allegations of
sexual abuse against staff members of facilities where she had resided, including the
staff member at North Star. But the court precluded the questioning, ruling that defense
counsel had not properly litigated the issue or the falsity of the prior allegations.31
(Bigham does not challenge the court’s decisions to preclude this questioning.)
On appeal, Bigham asks this Court to review the undisclosed OCS
documents that remain under seal to ensure that the superior court disclosed all relevant
materials. The State agrees that Bigham is entitled to have this Court review the
undisclosed records that remain under seal.
We have reviewed the records. Only a limited number of the records relate
to A.G.’s past allegations of sexual abuse, and the vast majority of these limited
documents were either disclosed to the parties or cumulative to the documents
disclosed.
The sealed records contain some additional context about A.G.’s reports
of sexual abuse against her stepfather. But, as we noted, the documents that were
disclosed to the parties contained meaningful discrepancies regarding A.G.’s
allegations, and defense counsel never pursued this line of inquiry prior to or during
trial. There is little reason to believe the additional details in the sealed records would
have impacted the litigation, and they are largely cumulative to the substantial
information defense counsel already had.32 We therefore conclude that the court did
not abuse its discretion in declining to disclose these documents.
31 See id.
32 We note that the records that were disclosed to the parties before trial did reveal
another sexual abuse allegation by A.G. against her stepfather. But it is unclear whether

– 24 – 7217
The undisclosed records also contain brief references to two other
instances in which A.G. reported to OCS that she had been sexually abused by a family
member and by family friends.33 The sexual abuse allegedly occurred when A.G. was
five and six years old, and the reports were made years later. The records contain little
information about these reports and no information as to whether the police investigated
these allegations or whether the claims were credited or substantiated. We question their
utility, given that Bigham’s attorney had much more substantial information about
A.G.’s allegation against her stepfather that the attorney did not pursue.
However, we conclude that the proper approach under these
circumstances is to remand this case to the superior court so that Bigham may litigate
the materiality of this additional information and the potential prejudice from the
court’s failure to disclose the information prior to trial.34
that claim was investigated or whether charges were pursued — and Bigham’s counsel did
not attempt to litigate its admissibility at trial.
33 The court did not provide an explanation for why it did not disclose these records.
To facilitate meaningful appellate review of sealed records, we urge judges to explain their
reasons for disclosing or not disclosing records — even if this order must itself be placed
under seal for our later review. See Douglas v. State, 527 P.3d 291, 310-11 (Alaska App.
2023) (“To facilitate . . . appellate review [of confidential records that are not disclosed to
the parties and placed under seal for later appellate review], we encourage the trial court to
provide a written or oral explanation of its disclosure decision.”).
34 See Coney v. State, 699 P.2d 899, 901 (Alaska App. 1985) (reversing trial court’s
refusal to order disclosure of key prosecution witness’s past police contacts, because “this
information, if developed, might lead to admissible evidence” relevant to witness’s
credibility and remanding for attorneys “to determine and argue . . . materiality” of
information); see also id. (recognizing that, “where a juvenile record contains arguably
admissible information, it should be turned over to the defendant so that its relevancy can
be argued in an adversary setting”); Zoll v. People, 425 P.3d 1120, 1125 (Colo. 2018)
(holding that, where the trial court erred in failing to disclose certain documents following
an in camera review, the proper remedy was to remand the case to the trial court for further
proceedings); State v. Girard, 247 A.3d 358, 366-67 (N.H. 2020) (remanding to the trial
court with instructions to conduct a further in camera review of the privileged records and
determine whether they contained “material and relevant” records requiring a new trial).

– 25 – 7217
On remand, Bigham shall have the opportunity to address whether this
undisclosed material would have led to the discovery of additional evidence.35 The trial
court shall then determine, after adversarial litigation, whether the additional
information was material and whether the error in failing to disclose the additional
documents requires a new trial.36 The superior court may, in its discretion, hold an
evidentiary hearing. The parties shall maintain the confidentiality of the records, as we
explain in more detail in a separate order.
Bigham’s claims regarding his escape convictions
Bigham was initially charged with attempted second-degree escape and
solicitation of second-degree escape based on his efforts to assist A.G. in leaving the
McLaughlin Youth Center. As relevant here, the offense of second-degree escape
requires the escaping person to be under “official detention for a felony.”37 The State
later reduced these charges from second-degree escape to fourth-degree escape —
which requires instead that the person have been under “official detention for a
misdemeanor” at the time of the offense.38 The statute defining “official detention”
35 See Stiffarm v. State, 339 P.3d 1021, 1026-27 (Alaska App. 2014) (remanding for a
determination of whether requested discovery not previously reviewed would have aided
the defense); see also Zoll, 425 P.3d at 1125 (recognizing that defense counsel is “in the
most suitable position to evaluate whether additional evidence may have been discovered
before trial as a result of the undisclosed information”).
36 In a separate order, we disclosed a redacted version of the newly identified records
to the attorneys on appeal and set limitations on the use and disclosure of these records.
These records will remain under seal and be transmitted to the superior court, along with
the entire sealed OCS file.
37 AS 11.56.310(a)(1)(B).
38 AS 11.56.330(a)(1).

– 26 – 7217
expressly includes “actual or constructive restraint under an order of a court in a . . .
juvenile proceeding.”39
On appeal, Bigham does not dispute that A.G. was under “official
detention” while at McLaughlin. However, he argues that the State presented
insufficient evidence that A.G. was under such detention for a misdemeanor offense.
Although the adjudication process for juvenile defendants is distinct from
criminal proceedings for adults, this Court has held that the escape statutes apply
equally to adjudicated delinquents. In particular, we have noted that “the language ‘for
a felony’ and ‘for a misdemeanor’ as used in the escape . . . statutes . . . is meant to
divide the universe of persons who are in ‘official detention’ into two categories, by
seriousness of their underlying conduct, and is not meant to exclude adjudicated
delinquents from the statutes.”40 We emphasized that the main purpose of classifying
felons and misdemeanants in the escape context is “to establish the appropriate degree
of escape to be charged and the period of incarceration to be imposed.”41
And when the lowest level of an offense is charged — as in the case of
fourth-degree escape — proof of a fact or status whose purpose is to enhance the offense
is generally not required. By way of analogy, when the State charges a person in Alaska
with the lowest level of theft (fourth-degree theft), the State need only prove that the
item stolen has some monetary value, not a particular dollar amount.42 The Virginia
39 AS 11.81.900(42) (defining “official detention,” in relevant part, as “custody, arrest,
. . . or actual or constructive restraint under an order of a court in a . . . juvenile
proceeding”).
40 LeFever v. State, 877 P.2d 1298, 1301 (Alaska App. 1994).
41 Id. (internal quotation marks omitted) (quoting State v. Stores, 816 P.2d 206, 212
n.5 (Alaska App. 1991)).
42 Flynn v. State, 1992 WL 12153295, at *2 (Alaska App. Sept. 23, 1992)
(unpublished) (stating that fourth-degree theft “is established when the stolen property has
any monetary value at all; no particular dollar value need be shown”); see also, e.g.,
Goldsbury v. State, 2012 WL 3253161, at *1 (Alaska App. Aug. 8, 2012) (unpublished)

– 27 – 7217
Court of Appeals has applied this rule to escape statutes, holding that when an escape
statute differentiates felons from misdemeanants solely to delineate the appropriate
degree of offense, a “substantive” violation requires only that the defendant escaped
from official custody.43 That is, “proof of the underlying offense for which an accused
is in custody is irrelevant to the determination of guilt, except in those cases in which
the [prosecution] seeks enhanced punishment[.]”44
In this case, because the State amended the charges to allege that Bigham
helped A.G. commit the lowest level of the offense (i.e., fourth-degree escape), the State
was required to show only that A.G. was under “official detention” at McLaughlin. As
we noted, Bigham does not dispute the fact that A.G. was under official detention.45 We
therefore conclude that there was sufficient evidence to support the jury’s verdicts on
the escape-related charges.
However, the State concedes that the jury’s verdicts for attempted fourth-
degree escape and solicitation of fourth-degree escape should merge because they were
based on the same underlying conduct. We have reviewed the record, and we conclude
that the State’s concession is well-founded.46 Because the superior court entered
(finding sufficient evidence for fourth-degree theft where property had only small,
unknown market value); Simpson v. State, 2006 WL 3691724, at *1-2 (Alaska App.
Dec. 13, 2006) (unpublished) (same).
43 See, e.g., Williams v. Commonwealth, 514 S.E.2d 381, 383 (Va. App. 1999).
44 Id.
45 The State presented evidence that McLaughlin Youth Center houses minors who
have been adjudicated or detained for a crime and that the residents of the girls treatment
unit, where A.G. resided, were detained under court orders.
46 See Avila v. State, 22 P.3d 890, 894 (Alaska App. 2001) (citing AS 11.31.140(b));
see also Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (appellate courts must
independently assess whether a State’s concession of error in a criminal case is well-
founded).

– 28 – 7217
convictions of record on these offenses, with no accompanying sentences, a
resentencing hearing is not required.
Correction of inaccuracies in the judgment
Finally, Bigham points to two inaccuracies in the judgment. Specifically,
Bigham asserts that the judgment: (1) incorrectly states that Bigham was convicted of
attempted second-degree escape and solicitation of second-degree escape under
AS 11.56.310(a)(1)(B); and (2) incorrectly recites the dates of the offenses for Count
IV (CTN 3) and Count IX (CTN 7).47
The State acknowledges these errors, and the State’s concession is well-
founded. The judgment should be corrected to reflect that the jury found Bigham guilty
of attempted fourth-degree escape and solicitation of fourth-degree escape under
AS 11.56.330(a)(1), which are both class B misdemeanors. (The court should then
further amend the judgment to reflect only a single conviction for one of these two
offenses.)
The parties are also correct with respect to the dates of Counts IV and IX
(CTNs 3 and 7, respectively) in the judgment.48 On remand, the superior court should
amend the judgment to reflect the correct dates for these offenses.
Conclusion
We REMAND this case to the superior court. On remand, the parties shall
be given an opportunity to litigate the materiality of the additional disclosed records
and whether Bigham was prejudiced by the court’s failure to disclose this discovery
47 The judgment orders the convictions according to the “CTN,” or charge tracking
number, associated with each offense, while the indictment and the jury instructions order
the charges by “Count.”
48 The years of the offenses are misstated in the judgment as to both counts.

– 29 – 7217
prior to trial. The superior court may, in its discretion, further review the OCS records
that remain under seal. The superior court shall issue a decision on this matter within
120 days of this decision. This deadline may be extended upon the request of the
superior court for good cause. Following the remand proceedings, we will allow the
parties to file supplemental briefing addressing the superior court’s decision and the
question of whether Bigham is entitled to a new trial.
On remand, the superior court shall also merge the verdicts for attempted
fourth-degree escape and solicitation of fourth-degree escape into a single conviction.
The court shall ensure that the judgment properly refers to fourth-degree escape under
AS 11.56.330(a)(1), as well as the correct dates of the offenses provided in Counts IV
and IX (CTNs 3 and 7, respectively). We reject Bigham’s remaining claims on appeal.
We retain jurisdiction.