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Berezyuk v. State

Court of Appeals of Alaska

October 20, 2017

YURI BEREZYUK, Appellant,
v.
STATE OF ALASKA, Appellee.

         Appeal from the Superior Court, Third Judicial District Trial Court No. 3PA-14-617 CR, Palmer, Kari Kristiansen, Judge.

          Appearances: Glenda Kerry, Law Office of Glenda J. Kerry, Girdwood, for the Appellant.

          Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

          Before: Mannheimer, Chief Judge, and Allard, Judge.

          OPINION

          ALLARD Judge.

         A jury found Yuri Berezyuk guilty of second-degree misconduct involving a controlled substance (possession of heroin with the intent to distribute) and fourth-degree misconduct involving a controlled substance (simple possession)[1] after Wasilla police found Berezyuk slumped over the wheel of his brother's car and in possession of 14 grams of heroin and other drug paraphernalia. At trial, the prosecutor sought to introduce evidence of Berezyuk's prior conviction for possession of heroin with intent to distribute (which occurred ten years earlier) as evidence of Berezyuk's intent to distribute the heroin found in the current case. The superior court overruled the defense attorney's objection to this evidence, concluding that evidence of the prior conviction was admissible under Bingaman v. State as evidence of a relevant "character trait" that "tends to prove [Berezyuk's] intent [to distribute heroin]."[2]

         On appeal, Berezyuk argues that the superior court applied the wrong evidentiary standard and erroneously permitted the prosecutor to use the prior conviction as character evidence at trial. We agree with Berezyuk that the superior court applied the wrong evidentiary standard and that the court failed to conduct the proper analysis under Alaska Evidence Rules 404(b)(1) and 403. We also conclude that the prosecutor's overt use of the prior distribution conviction as character evidence at trial unfairly prejudiced Berezyuk and requires reversal of his conviction for possession of heroin with the intent to distribute (but not his conviction for simple possession).

         Berezyuk also raises a second issue on appeal. In addition to the felony drug convictions, Berezyuk was also convicted of various misdemeanors, including giving false information to a peace officer based on his falsely identifying himself as his brother Ivan when he was arrested. Berezyuk challenges this false information conviction, arguing that he was prejudiced by the prosecutor's introduction of evidence relating to two post-arrest encounters with the police in which Berezyuk again falsely claimed to be his brother. For the reasons explained here, we find no merit to this claim.

         Background facts and prior proceedings

         On December 15, 2013, Wasilla Police Department Officer Michael Bonadurer responded to a call for a welfare check after a man was observed slumped over the wheel of a car in Wasilla. When Officer Bonadurer ran the license plate on the car, it came back as registered to Ivan Berezyuk.

         Officer Bonadurer approached the vehicle and noticed tin foil and a glass tube in the driver's hands. On the front passenger seat, there was an open sunglasses case with a small baggie containing a brown, tar-like substance that turned out to be heroin.

         Officer Bonadurer knocked on the car's window to waken the driver, and he directed the driver to open the door. Instead of opening the car door, the driver "mess[ed]" with the drug paraphernalia on the passenger seat, and then drove away, throwing the sunglasses case out of the window as he fled. A chase ensued and, within a short time, the driver was apprehended.

         Initially, the driver identified himself as "Ivan Berezyuk, " and he was taken to j ail, booked, and released on bail as Ivan Berezyuk. However, fingerprint analysis and a search of DMV records revealed that the driver was actually Ivan's brother, Yuri Berezyuk.

         After retracing the route the car had taken during the police chase, the police found the sunglasses case. The case held 14 grams of heroin, valued at approximately $7000. A search of the car also revealed a digital scale and Yuri Berezyuk's cell phone.

         The State indicted Berezyuk on one count of second-degree misconduct involving a controlled substance (possessing heroin with intent to distribute)[3] and one count of fourth-degree misconduct involving a controlled substance (knowingly possessing heroin).[4] The State also charged Berezyuk with three misdemeanors: failure to stop at the direction of a peace officer, [5] providing false information concerning identity, [6] and violating conditions of release.[7]

         At the beginning of Berezyuk's trial, the prosecutor sought to introduce evidence of Berezyuk's prior conviction for possession of heroin. The prior conviction arose from an incident in 2004 in which Berezyuk and his brother Ivan were arrested for stealing a camera from a kiosk in the Anchorage airport. When the police searched Berezyuk after the arrest, they discovered two bricks of heroin in Berezyuk's jacket, along with lubricating gel and an unopened package of party balloons in Berezyuk's bag. The two bricks of heroin weighed almost 320 grams, and were valued at approximately $250, 000. Berezyuk admitted to the police that he was waiting for a phone call so that he could deliver the heroin to a person in Wasilla. Berezyuk also told the police that, in exchange for delivering the heroin, he was supposed to receive three to four grams for his personal use. Based on this evidence, Berezyuk was convicted of second-degree misconduct involving a controlled substance for possessing heroin with intent to distribute.

         The prosecutor argued that this prior conviction should be admitted at trial because it was relevant to prove Berezyuk's intent to distribute the heroin found in the current case. Berezyuk's attorney objected and argued that the jury was likely to use the prior conviction for an improper purpose. The superior court overruled the objection.

         However, in overruling the defense attorney's objection, the superior court did not directly address whether the evidence was being offered for a non-propensity purpose; nor did the court analyze its admissibility under Evidence Rules 404(a), 404(b)(1), and 403. Instead, the court erroneously applied the test announced by this Court in Bingaman v. State, which applies to evidence of prior domestic violence offered as character evidence under Evidence Rule 404(b)(4).[8] After engaging in this erroneous analysis, the court then concluded that the prior conviction was admissible under Bingaman because the circumstances of the prior conviction were "sufficiently similar" to the current case and because Berezyuk's prior ...


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