Opinion
Court of Appeals No. A-11061 No. 6121
12-03-2014
ISAAC KVASNIKOFF, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
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. Trial Court No. 3DI-11-7 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Dillingham, Fred Torrisi, Judge. Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge HANLEY.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
A jury convicted Isaac Kvasnikoff of sexual abuse of a minor in the second degree and attempted sexual abuse of a minor in the second degree. On appeal, Kvasnikoff claims the prosecutor elicited impermissible testimony regarding his pre-arrest silence. We agree that the testimony should not have been admitted. We also conclude that, given the conflicting testimony at trial and the prosecutor's repeated references to Kvasnikoff's pre-arrest silence, the erroneously admitted testimony could have appreciably affected the jury's verdict. We therefore reverse Kvasnikoff's convictions.
Kvasnikoff also claims the evidence presented at trial was insufficient to support his attempted sexual abuse conviction. We have reviewed the record and conclude that the evidence was sufficient to support the conviction. Thus, the State is not prohibited from prosecuting this charge at a second trial.
Finally, Kvasnikoff asserts the trial court erred when it rejected a mitigating factor that he proposed. Because we are reversing Kvasnikoff's convictions, we do not reach this claim.
Facts and proceedings
Because one of Kvasnikoff's claims on appeal is that the evidence was insufficient to support his conviction, we present the following facts in the light most favorable to upholding the verdict.
Eide v. State, 168 P.3d 499, 500 (Alaska App. 2007).
In August of 2010, Isaac Kvasnikoff began living with his girlfriend, Patricia Kohler, and her three children at their apartment in Dillingham. At that time, Kvasnikoff's half-brother, Pete Kapotak, was also living at the apartment.
One day in August, Kohler's eleven-year-old daughter C.S. was at home with Kvasnikoff, Kapotak, and two of C.S.'s siblings. C.S. sat down in a chair in the living room to watch television. Her siblings were in their bedroom while Kapotak was on the couch in the living room. Kvasnikoff, who had been drinking, came into the living room and sat between C.S.'s legs. He turned around, looked at C.S., and said "I love you, babe," several times. Kvasnikoff then looked at C.S.'s breasts and put his hand on her left breast. When C.S. frowned at Kvasnikoff, he removed his hand. Kvasnikoff then put his fingertips into the back of C.S.'s pants. C.S. squirmed and told Kvasnikoff that she had to go to the bathroom. Kapotak did not see Kvasnikoff touch C.S.
C.S. told her siblings that Kvasnikoff was being "funny" in a "weird" way, and she then took a shower because she felt "dirty." When she finished showering, Kvasnikoff yelled for C.S. to come into her mother's bedroom and asked her to lie next to him on the bed. C.S. complied. Kvasnikoff then put his hand on her back near her buttocks, on top of her clothes, and moved his fingers inside her pants "just a little bit" and "on [her] skin a little bit." Kvasnikoff's other hand was on C.S.'s ribs, just below her left breast. She stayed in bed with him for a few minutes before she made an excuse and left the room. C.S. grabbed some of her belongings and Kvasnikoff yelled at her to come lie with him again. C.S. then left the apartment and went to her friend's house.
C.S. did not immediately tell anyone about the incident. In October, C.S. told a friend what Kvasknikoff had done. Her friend's mother reported her concerns about possible abuse to the Office of Children's Services (OCS). OCS and the Dillingham Police Department responded to the report.
An OCS social worker interviewed C.S., who stated that on the same day that Kvasnikoff had touched her breast, he had earlier come up behind her while she was washing dishes, put his arm around her, and tried to kiss her on her face. She stated that Kvasknikoff touched her in the same way he touched her mother.
Dillingham police officer Michael McFadden interviewed C.S.'s mother, Patricia Kohler. When Kohler informed McFadden that Kvasnikoff was out of town, McFadden asked her to have Kvasnikoff contact him. About two weeks later, McFadden learned that Kvasnikoff had returned to Dillingham, so he contacted Kvasnikoff and interviewed him. When McFadden asked Kvasnikoff why he had not contacted McFadden earlier, Kvasnikoff told McFadden that he "had just been busy and forgot."
A grand jury indicted Kvasnikoff on one count of sexual abuse of a minor in the second degree (for placing his hand on C.S.'s breast) and two counts of attempted sexual abuse of a minor in the second degree (one count for Kvasnikoff placing his fingertips under C.S.'s pants in the living room, and a second count for his conduct in the bedroom). Superior Court Judge Fred Torrisi granted Kvasnikoff's motion for a judgment of acquittal on the first count of attempted sexual abuse for placing his fingertips under C.S.'s pants in the living room. The jury convicted Kvasnikoff on the other two charges.
AS 11.41.436(a)(2).
AS 11.41.436(a)(2); AS 11.31.100(a).
We reverse Kvasnikoff's convictions because the prosecutor repeatedly elicited improper testimony regarding Kvasnikoff's pre-arrest silence
The State elicited testimony at trial that Kvasnikoff was aware that Officer McFadden wanted to speak with him about C.S.'s allegations, that Kvasnikoff knowingly refrained from contacting McFadden, and that McFadden believed Kvasnikoff might try to escape out the window when the police went to his home to interview him. Kvasnikoff argues on appeal that this testimony was inadmissible and that the trial court committed plain error by allowing it. We agree.
During the State's case, McFadden testified that he spoke to Patricia Kohler in October 2010 and that he asked Kohler to tell Kvasnikoff that he wanted to speak with Kvasnikoff about C.S.'s allegations "as soon as possible." McFadden further testified that in November he discovered that Kvasnikoff had returned to Dillingham but had not contacted him. As a result, McFadden went to Kvasnikoff's residence to speak with him. McFadden explained that he took a second officer with him because he thought that Kvasnikoff was avoiding him and that he wanted to prevent Kvasnikoff from leaving the residence through a window. McFadden testified that when he contacted Kvasnikoff at the apartment and asked Kvasnikoff why he had not contacted McFadden, Kvasnikoff stated that he had been busy and had forgotten.
During her re-direct examination of Officer McFadden, the prosecutor revisited the topic of Kvasnikoff's not contacting the officer. At that time, she asked McFadden what explanation Kvasnikoff had provided for not contacting the police. McFadden again testified that Kvasnikoff told him that he had been busy and had forgotten. When the prosecutor asked McFadden whether Kvasnikoff had been back in town for "a while" at that point, McFadden responded, "Yes, a few days."
Kvasnikoff took the stand at his trial. At the beginning of the prosecutor's cross-examination, the prosecutor and Kvasnikoff engaged in this colloquy regarding Kvasnikoff's not contacting the officer:
Prosecutor: All right. Isn't it true that you stated to the officer that you just got busy and forgot?
Kvasnikoff: I had just gotten back from Wasilla.
Prosecutor: Isn't it in fact true [that] you stated to Officer McFadden that you were busy and forgot?
. . .
Kvasnikoff: I was just back one or two days, ma'am.
Prosecutor: A police officer is looking for you to ask you questions about a serious, serious allegation. And you're telling us that you just got back, or you had been there for a couple of days?
Kvasnikoff: I'd been back, and I had to take care of the boat ... . And it was my intention to go down there in the day to the police station and see him.
Kvasnikoff asserts on appeal that he had the right to remain silent and the right not to contact the police. He argues that the testimony we have described here — McFadden's testimony about his attempt to interview Kvasnikoff, his reason for posting a second officer at the window at Kvasnikoff's residence, Kvasnikoff's statements to him, and the prosecutor's cross-examination of Kvasnikoff — violated these rights because this evidence suggested that Kvasnikoff was avoiding the police because he was guilty.
Because Kvasnikoff did not object to any of this testimony at trial, he must show that the admission of this evidence constituted plain error.
Error rises to the level of plain error if: (1) the error was obvious; (2) the error was not the result of the defendant's intelligent waiver or a tactical decision not to object; (3) the error affected the defendant's substantial rights; and (4) the error was prejudicial. Plain error involves "such egregious conduct as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice."
Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
Id. (footnote omitted).
We agree with Kvasnikoff that the admission of this testimony was obvious error. As our supreme court stated in Adams v. State, "evidence of a defendant's pre-arrest silence will usually be inadmissible under [Alaska] Evidence Rule 403 due to its inherently low probative value and its high risk of unfair prejudice." This has been the established law of Alaska for at least the last quarter-century, starting with this Court's decision in Silvernail v. State.
Id. at 765.
777 P.2d 1169 (Alaska App. 1989).
In Adams, the supreme court noted that Alaska courts have a historic "distrust of silence as probative evidence of guilt ... [because] there are many reasons why an accused's natural response would be to remain silent." For example, "[a] defendant's silence might be motivated by fear or intimidation; a failure to understand the question or realize that a reply was necessary; an unwillingness to incriminate another; mistrust of law enforcement; or simply an awareness of his right to remain silent."
Adams, 261 P.3d at 766-67 (internal quotation marks omitted) (citing Silvernail, 777 P.2d at 1176-77).
Id. at 767 (citing Silvernail, 777 P.2d at 1177-78).
In Silvernail, this Court held that it was plain error for the trial judge to allow the State to introduce evidence that, when the police contacted the defendant, the defendant did not tell police the exculpatory version of events that he later gave at trial. We explained that "Silvernail's silence appears to have been at least as consistent with innocence as it was with guilt," and thus it was a plain violation of Rule 403 "to allow the prosecution to inquire into his [pre-arrest] silence." We held that this inquiry was plainly more prejudicial than probative because it "could do nothing to advance the legitimate cause of determining the truthfulness of Silvernail's [version of events]," while "[o]n the other hand, the potential prejudice from this line of inquiry [was] both obvious and substantial."
Silvernail, 777 P.2d at 1174.
Id. at 1178.
Id.
The same thing is true in Kvasnikoff's case. A person in Kvasnikoff's position, having recently returned home to find himself accused of sexually abusing a minor, might reasonably decline a police request to submit himself to immediate interrogation. As this Court noted in Silvernail,
Silvernail, 777 P.2d at 1177 (quoting People v. Conyers, 420 N.E.2d 933, 935 (N.Y. 1981), and Farley v. State, 717 P.2d 111, 112 (Okla. Crim. App. 1986)).
[An] individual's silence in such circumstances may simply be attributable to his awareness that he is under no obligation to speak[,] or to the natural caution that arises from his knowledge that anything he says might later be used against him at trial. Alternatively, the individual may refrain from speaking because he believes that efforts to exonerate himself under the circumstances would be futile. ... [S]ome of our citizens harbor a mistrust [of] law enforcement authority which leads them to shun contact with the police even when the avoidance of contact is not in their own best interest.
. . .
One can conceive of a variety of situations where an innocent suspect would not offer himself or his story to the police. For example, the suspect may believe that he has committed no crime and therefore has no call to explain himself to the police. ... [H]e may fear disbelief of his story or retaliation by the police. [Or he] may feel that since the circumstances point to his guilt, he needs to remain free to try to prove his innocence.
Thus, the fact that Kvasnikoff declined to submit himself to questioning promptly upon his return to Dillingham had little or no probative value because it was at least as consistent with innocence as with guilt. But this evidence carried a high potential for unfair prejudice because the State implied that a person in Kvasnikoff's position should be expected to speak to the police, and that his unwillingness to do so was evidence of his guilt.
Furthermore, during the prosecutor's direct examination of Officer McFadden, the prosecutor asked McFadden about going to Kvasnikoff's house to interview him. McFadden testified that he took a second officer with him, and he directed this second officer to position himself at the side of Kvasnikoff's residence because McFadden thought that Kvasnikoff was avoiding him, and he suspected that Kvasnikoff might try to leave the residence through a window. This testimony suggested the police believed Kvasnikoff was avoiding contact with them because he was guilty. And later, during the prosecutor's cross-examination of Kvasnikoff, the prosecutor explicitly suggested that Kvasnikoff consciously avoided contacting the police.
For these reasons, it was obvious error for the trial judge to allow the prosecutor to introduce testimony that Kvasnikoff failed to contact the police upon his return to Dillingham, to allow the prosecutor to elicit testimony that the police believed Kvasnikoff was purposely avoiding their attempts to interview him, and to allow the prosecutor to cross-examine Kvasnikoff on this subject.
Turning to the second element of the plain error test, there is no evidence that these errors were the result of an intelligent waiver by Kvasnikoff's attorney or a tactical decision by the attorney not to object. Instead, it appears from the trial record that Kvasnikoff's attorney did not recognize that this evidence was improper, and there is no indication that Kvasnikoff benefited from the introduction of this evidence.
With regard to the third element of the test, as we have already explained, this error affected Kvasnikoff's substantive rights by suggesting to the jury that his failure to voluntarily submit to police questioning was evidence of his guilt.
The remaining question is whether this error prejudiced the fairness of Kvasnikoff's trial. More specifically, did the error "involv[e] such egregious conduct as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice[?]"
Adams v. State, 261 P.3d 758, 764 (Alaska 2011) (internal quotation marks omitted) (quoting Raphael v. State, 994 P.2d 1004, 1015 (Alaska 2000) (quoting U.S. v. Young, 470 U.S. 1, 16 (1985))).
Normally, an error that infringes on a defendant's constitutional right will require reversal unless the State proves that the error was harmless beyond a reasonable doubt. In contrast, when an error is not a constitutional violation, the error is harmless unless the defendant demonstrates that the error appreciably affected the jury's verdict.
Id. at 771.
Id.
In Adams, the supreme court concluded that Alaska law protects a defendant's pre-arrest silence through the rules of evidence, but did not reach the issue of whether the Alaska Constitution also prohibits the government from using evidence of a defendant's pre-arrest silence.
Id. at 766.
Id.
As we are about to explain, we conclude that the testimony about Kvasnikoff's pre-arrest silence was not harmless under the test for non-constitutional error. Therefore, as in Adams, we need not resolve the issue of whether the Alaska Constitution prohibits the State from using evidence of a defendant's pre-arrest silence.
In Adams, the supreme court recognized four factors for determining whether the admission of evidence of a defendant's silence is harmful under the test that applies to non-constitutional error:
(1) the strength of the State's other evidence, including whether the conviction depended primarily on resolution of conflicting witness testimony;
(2) whether the prosecutor commented on the defendant's silence during the prosecutor's closing argument;
(3) whether the reference was express rather than brief and passing; and
(4) whether the evidence was directly elicited by the prosecutor's questioning.
Id. at 774-75.
Here, the State's case depended on the testimony of C.S. and the evidence of her prior recorded interview at the Dillingham child advocacy center. The State presented no forensic evidence at trial; Kvasnikoff made no incriminating statements before trial; and he denied the allegations when he testified at trial.
The primary elements of Kvasnikoff's defense at trial were: (1) the State's case was not supported by any physical evidence; (2) another witness, Pete Kapotak, was in the room with C.S. and Kvasnikoff at the time of the alleged sexual abuse, and Kapotak testified that he did not see the alleged abuse; and (3) there was evidence suggesting that C.S. resented Kvasnikoff for moving into the family residence and that she had made false allegations in an attempt to have him removed and to garner attention.
Thus, the testimony of C.S. and Kvasnikoff conflicted, and, in the end, the jury had to decide whether the conflicting testimony left them with a reasonable doubt about Kvasnikoff's guilt.
It is true that, during the State's closing argument, the prosecutor did not mention the fact that Kvasnikoff failed to contact the police. However, the prosecutor directly elicited testimony about Kvasnikoff's pre-arrest silence from both the investigating officer and from Kvasnikoff himself. The prosecutor's reference to Kvasnikoff's silence was repeated and express, rather than "brief and passing." The clear implication of this testimony was that an innocent person in Kvasnikoff's position would have contacted the police and that Kvasnikoff failed to do so because he was guilty.
We conclude that Kvasnikoff has shown that there is a reasonable probability that this improper testimony tipped the balance against Kvasnikoff and appreciably affected the jury's verdict. Therefore, the error was not harmless, and we must reverse Kvasnikoff's convictions.
Cf. id. at 771-72.
The State presented sufficient evidence to support Kvasnikoff's conviction for attempted second-degree sexual abuse of a minor
Even though we are reversing Kvasnikoff's convictions on a different ground, we must address Kvasnikoff's argument that the State failed to present sufficient evidence to support his conviction for attempted second-degree sexual abuse of a minor. If, as Kvasnikoff asserts, the evidence was insufficient to support his conviction, double jeopardy would prohibit the State from trying Kvasnikoff at a second trial. Kvasnikoff specifically asserts that even if the jury believed the State's evidence of his actions with C.S. in the bedroom, these actions did not constitute a substantial step toward committing the offense of second-degree sexual abuse.
Howell v. State, 115 P.3d 587, 592 (Alaska App. 2005) (citing Burks v. U.S., 437 U.S. 1, 11 (1978)).
In reviewing the sufficiency of the evidence to support a criminal conviction, this Court views the evidence "in the light most favorable to the verdict and ask[s] whether a reasonable juror could have concluded that the defendant was guilty beyond a reasonable doubt."
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
To convict Kvasnikoff of attempted second-degree sexual abuse of a minor, the State was required to prove that Kvasnikoff, being sixteen years of age or older, intended to engage in sexual contact with C.S., who was under thirteen years of age, and that he engaged in conduct that constituted a substantial step toward the commission of this crime.
AS 11.41.436(a)(2); AS 11.31.100(a).
Kvasnikoff argues that even if the jury credited the State's evidence that when he was in the bedroom with C.S., he put his fingers slightly inside her pants and that he put one hand on C.S.'s ribs below her breast, these actions were insufficient to constitute a substantial step toward engaging in sexual contact with C.S. — because he kept his hands in these positions for several minutes and advanced them no further.
But when the jury evaluated Kvasnikoff's conduct and his accompanying mental state, the jury was entitled to consider not only the evidence of Kvasnikoff's conduct in the bedroom, but also the State's evidence concerning Kvasnikoff's earlier actions toward C.S. in the living room — specifically, the evidence that Kvasnikoff tried to kiss C.S., that he touched her breast, and that he put his fingertips inside the waistband of her pants.
Taking all of this evidence together, reasonable jurors could find that Kvasnikoff intended to engage in sexual contact with C.S. in the bedroom, and that Kvasnikoff's conduct in the bedroom was a substantial step toward this goal. The evidence was therefore sufficient to support the charge of attempted second-degree sexual abuse of a minor and double jeopardy does not preclude the State from bringing Kvasnikoff to trial again on this charge.
See Bush v. State, 157 P.3d 1059, 1062 (Alaska App. 2007) (citing Howell, 115 P.3d at 592).
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The proposed mitigating factor at sentencing
Kvasnikoff asserts that the trial court erred when it rejected a mitigating factor he proposed at sentencing. Because we are reversing Kvasnikoff's convictions, we do not reach this claim of error.
Conclusion
The judgment of the superior court is REVERSED.