from the Superior Court Trial Court No. 3AN-12-08627 CR,
Third Judicial District, Anchorage, Michael R. Spaan, Judge.
Michael L. Barber, Barber Legal Services, Boston,
Massachusetts (opening brief), and Michael Horowitz, Law
Office of Michael Horowitz, Palmer (reply brief), under
contract with the Office of Public Advocacy, Anchorage, for
E. DeLucia, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Jahna Lindemuth, Attorney General,
Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Keith Kasgnoc Sr. appeals his convictions for second-degree
sexual assault and incest. On appeal, he argues that the
trial court erred in admitting, under Alaska Evidence Rule
404(b)(3), evidence related to his prior sexual abuse of a
minor. For the reasons explained in this opinion, we reject
Kasgnoc's claim, and we affirm his convictions.
August 2012, the State accused Kasgnoc of sexually
penetrating his twenty-year-old daughter, L.K., while she was
incapacitated or unaware of the sexual act. On the night of
the incident, L.K. was sleeping at Kasgnoc's apartment.
She reported that, during the night, she awoke to find
Kasgnoc on top of her, inserting his penis into her vagina.
L.K. pushed Kasgnoc off, dressed, and left the apartment.
L.K. subsequently reported the assault to the police.
jury indicted Kasgnoc for second-degree sexual assault and
incest.Kasgnoc was tried twice. The first trial
ended in a mistrial after the jury deadlocked. A second jury
convicted Kasgnoc of both charges.
testified in his defense at both trials, providing a
different version of events than L.K. Kasgnoc testified that
after L.K. arrived at his apartment, he told her that she
could sleep on the living room floor; he then returned to his
room to sleep. Sometime later, he awoke to find that his
shorts had been removed and L.K. was lying naked in his bed,
touching his penis. Kasgnoc testified that he told L.K. to
get out of his apartment, and L.K. dressed and left.
trial court's ruling on the admissibility of evidence of
Kasgnoc 's prior sexual abuse of a minor
2001, prior to the events in this case, Kasgnoc was convicted
of sexually abusing another one of his daughters, V.K.,
beginning when she was six years old. During his testimony in
the present case, Kasgnoc acknowledged that he initially
blamed V.K. for the abuse. He also testified that on some
occasions, V.K. initiated the sexual contact. Kasgnoc said
that his abuse of V.K. lasted about four years.
Kasgnoc's first trial on the current charges, the
prosecutor argued that evidence of Kasgnoc's prior abuse
of V.K. was admissible under Alaska Evidence Rule 404(b)(3)
if Kasgnoc raised a consent defense. Evidence Rule 404(b)(3)
provides, in relevant part:
In a prosecution for a crime of sexual assault in any degree,
evidence of other sexual assaults or attempted sexual
assaults by the defendant against the same or another person
is admissible if the defendant relies on a defense of
trial court disagreed that Kasgnoc's defense was properly
characterized as a consent defense. Ultimately, however,
Kasgnoc's attorney agreed to introduce evidence of the
prior conduct during his direct examination of Kasgnoc. The
first trial ended in a mistrial.
Kasgnoc's second trial, the prosecutor filed a motion to
introduce evidence of the prior conduct under Alaska Evidence
Rule 404(b)(4). Evidence Rule 404(b)(4) provides:
In a prosecution for a crime involving domestic violence or
of interfering with a report of a crime involving domestic
violence, evidence of other crimes involving domestic
violence by the defendant against the same or another person
or of interfering with a report of a crime involving domestic
violence is admissible. In this paragraph, "domestic
violence" and "crime involving domestic
violence" have the meanings given in AS 18.66.990.
opposed the State's motion to introduce evidence of his
then, Kasgnoc's case had been reassigned to a different
superior court judge. That judge ruled that, if Kasgnoc
relied on a consent defense, evidence of his prior conduct
involving V.K. would be admissible under Rule 404(b)(3). The
court declined to rely on Rule 404(b)(4), concluding that
Rule 404(b)(3) governed to the exclusion of Rule 404(b)(4)
because Rule 404(b)(3) was specifically applicable to sexual
assaults. The court described Rule 404(b)(4) as "more
lenient" than Rule 404(b)(3) because Rule 404(b)(3)
required a "consent" defense as a prerequisite in a
sexual assault case. The court acknowledged that incest was
"a crime involving domestic violence" for purposes
of Rule 404(b)(4),  but the court nonetheless decided to rely
solely on Rule 404(b)(3).
State filed a motion to reconsider, arguing that evidence of
Kasgnoc's prior conduct was admissible under Rule
404(b)(4) because the charged offenses and Kasgnoc's
prior conduct qualified as crimes involving domestic
trial judge denied the State's motion. The judge again
ruled that the "specific rule for sexual assault"
applied over the "general ...