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Kasgnoc v. State

Court of Appeals of Alaska

June 28, 2019

ADAM KEITH KASGNOC SR., Appellant,
v.
STATE OF ALASKA, Appellee.

          Appeal 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 the Appellant.

          Tamara 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, Judges.

          OPINION

          WOLLENBERG, JUDGE.

         Adam 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.

         Underlying facts

         In 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.

         A grand jury indicted Kasgnoc for second-degree sexual assault and incest.[1]Kasgnoc was tried twice. The first trial ended in a mistrial after the jury deadlocked. A second jury convicted Kasgnoc of both charges.

         Kasgnoc 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.

         The trial court's ruling on the admissibility of evidence of Kasgnoc 's prior sexual abuse of a minor

         In 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.

         During 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 consent.

         The 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.

         Before 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.

         Kasgnoc opposed the State's motion to introduce evidence of his prior conduct.

         By 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), [2] but the court nonetheless decided to rely solely on Rule 404(b)(3).

         The 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 violence.[3]

         The trial judge denied the State's motion. The judge again ruled that the "specific rule for sexual assault" applied over the "general ...


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