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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 BRETT R. WHITE, Court of Appeals No. A-10902 Appellant, Trial Court No. 1KE-10-727 CR v. O P I N I O N STATE OF ALASKA, Appellee. No. 2389 â€” April 5, 2013 Appeal from the District Court, First Judicial District, Ketchikan, Kevin G. Miller, Judge. Appearances: Lars Johnson, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. James Scott, Assistant District Attorney, Ketchikan, and Michael C. Geraghty, Attorney General, Juneau, for the AppelÂ lee. Before: Mannheimer, Chief Judge, and Bolger and Allard, Judges. Judge MANNHEIMER. A jury found Brett R. White guilty of fourth-degree assault. After the jury returned this verdict, White asked the district court to order a new trial under Alaska Criminal Rule 33(a), on the ground that the verdict was against the weight of the ----------------------- Page 2----------------------- evidence. The district court denied this motion, but the courtâ€™s written decision suggests that the court may have employed the wrong legal test when deciding this issue. As this Court explained in Taylor v. State, 262 P.3d 232 (Alaska App. 2011), when a trial judge is asked to grant a new trial on the ground that the juryâ€™s verdict is against the weight of the evidence, the trial judge must assess the weight of the evidence and the credibility of the witnesses without deference to the juryâ€™s view of these matters. Id. at 233-34. If the judge reaches the same conclusion as the jury after performing this assessment, then of course the judge should deny the motion for a new trial. But even when the judge personally disagrees with the juryâ€™s verdict, this does not, by itself, warrant the judge in ordering a new trial. Rather, â€śa judge should vacate a juryâ€™s verdict and grant a new trial under Criminal Rule 33 only when the evidence ... is so one-sided that the juryâ€™s contrary view of the case is plainly unreasonable and unjust.â€ť Id. at 234. 1 When the district court denied Whiteâ€™s motion for a new trial, the district court referred to the â€śplainly unreasonable and unjustâ€ť test, but the court also referred to another formulation of the test. The district court declared that it was legally required to deny Whiteâ€™s motion if there was â€ś[any] evidentiary basis for the juryâ€™s decisionâ€ť. A judge deciding a motion for a new trial is not supposed to ask whether there is any conceivable evidentiary basis for the juryâ€™s decision. Rather, the judge is supposed to independently assess the weight of the evidence and the credibility of the witnesses. Then, if the jury held a contrary view of the case, the judge must ask whether (in the judgeâ€™s assessment) the evidence is so one-sided â€śthat the juryâ€™s contrary view of the case is plainly unreasonable and unjustâ€ť, even though there might be some conceivable view of the evidence that would provide a legal justification for the juryâ€™s 1 Citing Howell v. State, 917 P.2d 1202, 1212 (Alaska App. 1996). â€“ 2 â€“ 2389 ----------------------- Page 3----------------------- verdict â€” i.e., even though it would have been improper for the judge to have granted a motion for a directed verdict (in a civil case) or for a judgement of acquittal (in a criminal case). We concede that the language, â€ś[any] evidentiary basis for the juryâ€™s decisionâ€ť, is repeatedly cited in Alaska appellate decisions. But it is not cited as the proper standard for a trial judge to employ when deciding whether to grant a new trial. Rather, this formulation is the standard that an appellate court employs when a litigant challenges a trial judgeâ€™s denial of a request for a new trial (on the ground that the juryâ€™s verdict is against the weight of the evidence). 2 In other words, this is the test that an appellate court applies to cases where the trial judge affirmatively finds the juryâ€™s verdict to be reasonable, and the appellate court is asked to review the trial judgeâ€™s ruling â€” i.e., asked to decide whether it was an abuse of discretion for the trial judge to uphold the juryâ€™s verdict. When the district court denied Whiteâ€™s motion for a new trial, the court relied on both the â€śplainly unreasonable and unjustâ€ť formulation and the â€ś[any] evidentiary basisâ€ť formulation. Because one of these formulations is inapplicable to the question before the district court, we must vacate the district courtâ€™s decision and direct the district court to reconsider Whiteâ€™s motion in light of what we have said here. The decision of the district court is VACATED, and this case is remanded to the district court for reconsideration of Whiteâ€™s motion for a new trial. We do not retain jurisdiction of this case. 2 See, e.g., Hogg v. Raven Contractors, Inc., 134 P.3d 349, 352 (Alaska 2006); Kava v. American Honda Motor Co. , 48 P.3d 1170, 1176-77 (Alaska 2002); Amidon v. State , 565 P.2d 1248, 1262 n. 44 (Alaska 1977); Howell v. State, 917 P.2d 1202, 1212 (Alaska App. 1996). â€“ 3 â€“ 2389
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