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Ahvakana v. State (8/17/2012) ap-2369

Ahvakana v. State (8/17/2012) ap-2369

                                                NOTICE 

        The text of this opinion can be corrected before the opinion is published in the Pacific 

        Reporter.   Readers are encouraged to bring typographical or other formal errors to 

        the attention of the Clerk of the Appellate Courts. 



                               303 K Street, Anchorage, Alaska  99501
 

                                         Fax:   (907) 264-0878
 

                         E-mail:   corrections @ appellate.courts.state.ak.us
 



               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 



FORREST J. AHVAKANA,                             ) 

                                                 )         Court of Appeals No. A-10665 

                            Appellant,           )         Trial Court No. 2BA-08-519 CR 

                                                 ) 

             v.                                  ) 

                                                 )                O    P   I  N  I  O  N 

STATE OF ALASKA,                                 ) 

                                                 ) 

                            Appellee.            ) 

                                                 )            No. 2369 - August 17, 2012 



                Appeal     from    the  Superior   Court,   Second    Judicial   District, 

                Barrow, Richard H. Erlich, Judge. 



                Appearances:       James   M.   Hackett,   Law    Office   of James    M. 

                Hackett, for the Appellant. Kenneth M. Rosenstein, Assistant 

                Attorney General, Office of Special Prosecutions and Appeals, 

                Anchorage, and John J. Burns, Attorney General, Juneau, for the 

                Appellee. 



                Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges. 



                BOLGER, Judge. 



                After observing evidence of a domestic violence assault, the police entered 



a trailer where the  suspect, Forrest J. Ahvakana, was  staying, found him hiding in a 



bedroom closet, and arrested him. Ahvakana argues that this entry and search were illegal. 



He also argues that the police unlawfully seized bloody clothing they found inside the 



trailer. 


----------------------- Page 2-----------------------

                We conclude that the entry and search of the trailer were justified under the 



circumstances   of   this   case.   The   police   officers   confronted   an   emergency   situation 



involving domestic violence, and they had a legitimate need to locate the individuals 



involved in that violence. Once the police were lawfully inside the trailer, they were 



entitled to seize evidence that they observed in plain view. 



                Ahvakana additionally argues that the superior court abused its discretion 



by refusing to sever the charge that he committed a misdemeanor assault against his 



girlfriend from felony charges stemming from his attack on a different victim earlier that 



day. Ahvakana's argument on appeal is different from the argument he raised in support 



of his motion below, so he must show plain error. We find no plain error in the superior 



court's   decision   to   deny   the   motion   to   sever   the   charges.   Accordingly,   we   affirm 



Ahvakana's convictions. 



        Background 



                On December 8, 2008, shortly after 9:00 a.m., North Slope Police Sergeant 



Jose Gutierrez III, Officer Vance Enderle, and police trainee Stephen Smith responded 



to a report that Billy Kaleak had been assaulted in Barrow. The officers found Kaleak at 



his mother's house, covered in blood "from head to toe, [with] blood running down from 



his face, down the front of him." Kaleak had "large lacerations to his head" and a "large 



pool of blood ... from behind his head on the floor." Kaleak told the police that Forrest 



Ahvakana had hit him with an empty bottle of Jack Daniels, and that the assault had 



occurred next door, where Kaleak lived. 



                 The police followed a blood trail leading to Kaleak's residence. There was 



a large amount of blood throughout the house. Officer Enderle testified, "The house was 



a total wreck, the tables overturned, broken glass all over the place." 



                                                 - 2 -                                             2369
 


----------------------- Page 3-----------------------

                While the officers were taking photographs and collecting evidence of this 



assault, they received a report that a woman, Dolly Patterson, had heard "what sounded 



like a female being beaten up out on Cakeatter Road." The officers responded to Cakeatter 



Road and contacted Patterson, who said that, while she was outside smoking a cigarette, 



she heard a woman screaming and crying, and a man yelling. Patterson could not identify 



exactly where the sounds came from, but she pointed the officers in the direction of a 



nearby home, where the officers spoke with Johnnie Ningeok. Ningeok told the officers 



that Ahvakana and his girlfriend, Ella Black, were staying with Ahvakana's sister at the 



trailer next door. 



                At this point, the officers believed Ahvakana was the suspect in two assaults. 



The officers approached the trailer with guns drawn and Enderle knocked on the door, 



but no one answered. Enderle and Smith tried to break the door in, but were unsuccessful. 



Ella Black eventually came to the door, naked and wrapped in a blanket. Through the 



window, Sergeant Gutierrez could see that Black had cuts on her face and blood on her 



hair, face, and neck. When Black opened the door, he observed that she was crying and 



shaking. Black told the officers that Ahvakana was not there, but they did not believe her. 



The police entered the residence. Officer Enderle searched the back bedroom and found 



Ahvakana hiding in a closet. 

                Ahvakana   was   charged   with   attempted   first-degree   murder, 1         first-   and 



                           2                          3                                              4 

second-degree assault,  first-degree burglary,  and two counts of third-degree assault  for 



        1   AS 11.41.100(a)(1)(A); AS 11.31.100. 



        2   AS 11.41.200(a)(1)-(3); AS 11.41.210(a)(1)-(2). 



        3   AS 11.46.300(a)(1). 



        4   AS 11.41.220(a)(1)(B). 



                                                  - 3 -                                               2369 


----------------------- Page 4-----------------------

                                                                                       5 

his attack on Billy Kaleak. He was charged with fourth-degree assault  for recklessly 



causing physical injury to Ella Black, or placing her in fear of imminent physical injury. 



Before trial, Ahvakana moved to suppress the evidence the police obtained when they 



entered and searched the trailer. Ahvakana also moved to sever the fourth-degree assault 



charge from the felony charges because of the risk that the more serious charges would 



unfairly prejudice his defense to the misdemeanor assault. Superior Court Judge Richard 



H. Erlich denied both motions. The trial jury acquitted Ahvakana of attempted murder 



and convicted him of the other offenses. He appeals. 



        Discussion 



                 The entry and search were valid under the emergency aid 

                exception to the warrant requirement. 



                Warrantless   entries   of   a   residence   are   unreasonable   under   the   Fourth 



Amendment unless the State proves by a preponderance of the evidence that the police 

conduct fell within a recognized exception to the warrant requirement.6 In Gallmeyer v. 



State, we ruled that a warrantless entry will be justified under the "emergency   aid" 



exception if these three elements are met: 



                         (1) The police must have reasonable grounds to believe 

                that there is an emergency at hand and an immediate need for 

                their assistance for the protection of life or property. 



                         (2)  The   search   must   not   be   primarily   motivated   by 

                intent to arrest [a person] and seize evidence. 



                         (3) There must be some reasonable basis, approximating 

                probable cause, to associate the emergency with the area or 



        5   AS 11.41.230(a)(1), (3).
 



        6   Gallmeyer v. State, 640 P.2d 837, 841 (Alaska App. 1982).
 



                                                  - 4 -                                               2369 


----------------------- Page 5-----------------------

                 place to be searched.7 



                 This three-prong test was adopted from a New York Court of Appeals case, 

People v. Mitchell .8 Recently, in State v. Gibson ( Gibson II), the Alaska Supreme Court 



adopted the Mitchell/Gallmeyer standard as a matter of state constitutional law.9 



                 In Gibson II, the police responded to a 911 call placed by a woman who 

reported that a man was threatening to stab her in the head.10 When the police arrived at 



the scene, they heard a woman screaming inside the residence.11 Moments later, the 



woman "tumbled out of the door" wearing only a tank top and screaming for help.12 She 



was bleeding from a cut on the back of her head and her eye was swollen.13 



                 Gibson appeared in the doorway of the trailer and the officers ordered him 

outside.14 He was cooperative and the police took him into custody.15 The woman was 



also placed in the back of a patrol car because she was "screaming and crying and carrying 



         7   Id. at 842.   
 



         8   Id. (citing People v. Mitchell , 347 N.E.2d 607, 609 (N.Y. 1976), abrogated by
 



Brigham City, Utah v. Stuart , 547 U.S. 398 (2006)). 



         9   267 P.3d 645, 659 (Alaska 2012). 



        10   Gibson v. State (Gibson I), 205 P.3d 352, 353 (Alaska App. 2009), rev'd, Gibson 



II , 267 P.3d 645. 



        11   Id. 



        12   Id. 



        13   Id. 



        14   Id. 



        15   Id. 



                                                    -  5 -                                                2369 


----------------------- Page 6-----------------------

on."16 She told the police there was no one left inside the trailer.17 The officers, unsure 



whether the woman was telling the truth, waited for backup officers to arrive and then 

entered   the   trailer   to   search   for   anyone   who   might be   injured.18        They   discovered   a 



methamphetamine laboratory and obtained a warrant to search the trailer for evidence 

of drug activity.19 



                  The supreme court ruled that the entry and search of the trailer were justified 

by an ongoing emergency.20 The court found that the police could not be certain under 



the circumstances whether Gibson and the woman who reported the assault were the only 

individuals   involved   in   the   domestic   violence   in   the   trailer.21        The   court   noted   that 



"[s]ilence from the trailer for the 25 minutes the officers waited for the backup officer 



to arrive was as equally consistent with someone lying injured in the trailer as it was with 

no one being in the trailer."22 



                  The court then declared the following rule: 



                  [W]here[] (1) the police respond to a domestic violence call 

                  and find serious domestic violence has occurred; and (2) it is 

                  unclear   whether   the   police   have   accounted   for   everyone, 

                  especially children, who may have caused or been affected by 

                  the    serious    domestic      violence,      the   police    may    have     a 



         16  Id. at 354. 



         17  Id. 



         18  Id. 



         19  Id. 



         20  Gibson II, 267 P.3d at 664. 



         21  Id . 



         22  Id. 



                                                      - 6 -                                                    2369 


----------------------- Page 7-----------------------

                reasonable belief that some unknown person(s) might be lying 

                injured and enter the premises to search for possible victims.23 



                In this case, viewing the facts in the light most favorable to the superior 

court's ruling,24 the police responded to a report of a possible domestic violence assault 



- "what sounded like a female being beaten up out on Cakeatter Road." The police were 



directed to the vicinity of the trailer where Ahvakana and his girlfriend, Black, were 



staying. The officers had just left the scene of a serious assault with a whiskey bottle, and 



Ahvakana had been identified as the perpetrator of that assault. When officers knocked 



on the door of the trailer, and then attempted, unsuccessfully, to push the door in, no one 



responded. 



                When Black finally came to the door, Sergeant Gutierrez observed through 



the window that she had cuts and blood on her face and that she was naked except for 



a blanket. When she opened the door, Gutierrez saw that she was shaking and crying. 



Black denied that Ahvakana   was in the house, but Gutierrez believed, based on his 



observation and his past experience with victims of domestic violence, that she might be 



lying.   He   testified   that,   given   these   circumstances,   he   was   concerned   about   Black's 



continued safety, the officers' safety, and the safety of anyone else who might still be in 



the trailer. 



                Officer Enderle likewise testified: 



                I wanted to go through the house, secure it, and make sure 

                there was nobody else in the house.             We knew that ... the 

                house belonged to Forrest's sister and that they were - they 

                were staying there; [we] had no idea if there was anybody else 

                in the house at that time, any children, any other adults in the 

                house.    We wanted to clear the house, and make sure there 



        23  Id. at 667.
 



        24  See State v. Miller, 207 P.3d 541, 543 (Alaska 2009).
 



                                                  -  7 -                                              2369 


----------------------- Page 8-----------------------

                wasn't     anybody     else   injured   and   -    and   locate   Forrest 

                 [Ahvakana] at that time. 



                In Gibson II, the supreme court held that the first prong of the Gallmeyer 



test - the prong requiring the police to have reasonable grounds to believe there is an 



emergency at hand and an immediate need for their assistance in the protection of life or 



property - is satisfied if the police have good reason to believe there might be someone 

injured on the premises.25 The court declared that when the police determine that serious 



domestic violence has occurred, and that it is unclear whether everyone who may have 



caused or been affected by that domestic violence has been accounted for, "the police may 



have a reasonable belief that some unknown person(s) might be lying injured and [may] 

enter the premises to search for possible victims."26           The supreme court found that this 



prong of the Gallmeyer test was satisfied even though Gibson and his apparent victim 



were already outside the trailer in custody and the police had no specific information 

anyone else remained inside.27 



                In this case, the police had reason to believe Ahvakana was still inside the 



trailer, that Black might be in serious danger, and that there might be other victims. The 



police had been told that Ahvakana shared the trailer with both Black and his sister, and 



the police confirmed the address with dispatch. A neighbor had just reported a man yelling 



and a woman crying and screaming in the vicinity. Ahvakana had been implicated in a 



serious assault earlier that morning. And Ahvakana's girlfriend, Black, responded to the 



door of the trailer with fresh blood on her face, wearing only a blanket. Given these facts, 



        25  267 P.3d at 667. 



        26  Id. 



        27  Id. at 663-64. 



                                                  - 8 -                                               2369 


----------------------- Page 9-----------------------

we have no difficulty concluding that the first prong of the Gallmeyer test was satisfied 



in this case. 



               Ahvakana also argues that the State failed to prove the second prong of the 



Gallmeyer test, which requires that the search not be primarily motivated by the intent 



to arrest a person or seize evidence. But Sergeant Gutierrez testified that he "[d]idn't know 



if [Black] was by herself or there [were] other ... family members [inside the trailer]." He 



said he was concerned for Black's safety and for the safety of the responding officers. 



Officer Enderle likewise testified that the police "wanted to clear the house and make sure 



there wasn't anybody else injured." The superior court could reasonably conclude that 



when the police entered the trailer, their primary aim was not to initiate or further a 



criminal prosecution, but to ensure the safety of Black and any other victims who might 



be inside the residence. 



               The third prong of the  Gallmeyer test requires the police to have "some 



reasonable basis, approximating probable cause, to associate the emergency with the area 

or place to be searched."28 Ahvakana conceded this prong at the suppression hearing, and 



he did not discuss it in his opening brief. In his reply brief, he argues for the first time that 



the officers exceeded the permissible scope of the search by looking through the "entire 



residence." This claim is waived because it was raised for the first time on appeal, in 

Ahvakana's reply brief.29 In any event, the superior court reasonably could have found 



that   the  officers   responded  appropriately    by  searching   the  bedroom    closet,   where 

Ahvakana or another victim could be concealed.30 



        28 Gallmeyer, 640 P.2d at 842. 



        29 See Crittell v. Bingo , 83 P.3d 532, 536 n.19 (Alaska 2004) (holding that a reply 



brief "may raise no contentions not previously raised in either the appellant's or appellee's 

briefs" (quoting Alaska R. App. P. 212(c)(3)). 



        30 See Gallmeyer, 640 P.2d at 842-43, 845; cf. Maryland v. Buie, 494 U.S. 325, 334 



(1990) (holding that, incident to an arrest, officers could "look in closets and other spaces 

                                              -  9 -                                          2369 


----------------------- Page 10-----------------------

                 Ahvakana also raises a number of Fourth Amendment challenges to the entry 



and search that he did not advance in the superior court. We conclude that these claims 



were not preserved, and also that they have no merit. 



                 The police lawfully seized the bloody clothing because it was in plain 

                 view. 



                 Ahvakana also challenges the police seizure of bloody clothing inside the 



trailer. Judge Erlich found that Black consented to the seizure of the clothing. We conclude 



that we need not decide that issue, because the police were authorized to seize evidence 

of a crime that they observed in plain view.31 



                 Under Alaska law, a search must satisfy three requirements to fall within 



the plain view doctrine: (1) the initial intrusion that afforded the view must have been 



lawful;   (2)   the   discovery   of   the   evidence   must   have   been   inadvertent;   and   (3)   the 

incriminating nature of the evidence must have been immediately apparent.32 Ahvakana 



only disputes the first element - he argues that the seizure was illegal because the police 



were not lawfully inside the trailer. But as we already explained, the police entry and 



search were authorized under the emergency aid exception to the warrant requirement. 



                 We acknowledge that the United States Supreme Court has held that, under 



the Fourth Amendment, the warrantless seizure of evidence in plain view is allowed even 

if the discovery of the evidence was not inadvertent.33 But there is no dispute in this case 



immediately   adjoining   the   place   of   arrest   from    which   an   attack   could   be   immediately 

launched"). 



        31   See   Lewis   v.   State,   9   P.3d   1028,   1034,   1037   (Alaska   App.   2000)   (noting   that 



appellate courts are authorized to affirm a trial court ruling on any ground supported by the 

undisputed record). 



        32  Reeves v. State , 599 P.2d 727, 738 (Alaska 1979). 



        33  Horton v. California , 496 U.S. 128, 130 (1990). 



                                                   -  10 -                                               2369 


----------------------- Page 11-----------------------

that the evidence was inadvertently discovered, so we have no reason to decide whether 



Alaska should follow federal law in this regard. 



                 The court   properly denied the motion to sever the assault 

                 charges. 



                 In superior court, Ahvakana moved under Criminal Rule 14 for severance 

of the fourth-degree assault charge from the attempted murder and other charges.34 He 



argued   that   he   would   be   prejudiced   by   joinder   of   these   offenses   because   the   "vast 



majority" of the evidence related to the charge of attempted murder of Kaleak would not 



be admissible in a separate trial on the misdemeanor charge of assaulting Black. 



                 On appeal, Ahvakana argues that the superior court should have granted his 



motion to sever the charges for a different reason that he did not advance in superior court: 



because the evidence of his fourth-degree assault on Black prejudiced his alibi defense 



to the felony charges involving Kaleak. Because Ahvakana did not raise this claim below, 

he must show plain error.35 



                 At Ahvakana's trial, Black testified that Ahvakana was not at Kaleak's 



residence when the attack on Kaleak occurred. Ahvakana argues that the evidence that 



Black lied to protect him from conviction on the charge that he committed a misdemeanor 



        34  Alaska R. Crim. P. 14 provides in pertinent part: 



                 If it appears that a defendant or the state is unfairly prejudiced by a
 

            joinder of offenses or of defendants in an indictment or information or
 

            by such joinder for trial together, the court may order an election or
 

             separate trials of counts, grant a severance of defendants, or provide
 

            whatever other relief justice requires.        A showing that evidence of one
 

             offense   would   not   be   admissible   during   a   separate   trial   of   a   joined
 

             offense or a codefendant does   not constitute prejudice that warrants
 

            relief under this rule. 
 



        35  See Punguk v. State, 784 P.2d 246, 248 (Alaska App. 1989). 



                                                  -  11 -                                               2369 


----------------------- Page 12-----------------------

assault against her later that day undermined the credibility of Black's testimony that he 



had an alibi to the felony charges. He argues that he was therefore unfairly prejudiced 



by joinder. 



              If evidence of joined charges would be cross-admissible if the charges were 



tried separately, "the defendant is hard-pressed to show actual prejudice from the failure 



to sever, since the evidence would have been admitted even if the judge had granted 

separate trials."36 The evidence that Ahvakana assaulted Black, and that Black lied to the 



police about that assault, was relevant to attack the credibility of Black's testimony in 



support of Ahvakana's alibi defense - to show the nature of Black's and Ahvakana's 



relationship, and to show that Black might be (as the State argued) "just protecting her 



man." The evidence of Ahvakana's assault on Black would therefore have been admissible 



in a separate trial on the felony charges involving Kaleak. 



              Ahvakana has not shown how this evidence prejudiced his trial on the felony 



charges, apart from its legitimate tendency to undermine the credibility of his defense. 



Furthermore, joinder of the charges was appropriate because the offenses were related, 

took place close in time, and involved overlapping evidence.37 We conclude that Ahvakana 



has not shown plain error. 



       Conclusion 



              We AFFIRM Ahvakana's convictions. 



       36  Pease v. State , 54 P.3d 316, 322 (Alaska App. 2002). 



       37  Alaska R. Crim. P. 8(a). 



                                           -  12 -                                       2369 

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