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
...