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White v. State (4/5/2013) ap-2389

White v. State (4/5/2013) ap-2389

                                               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
 

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               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      —   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 Appel­ 

                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 court’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 jury’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 jury’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 jury’s verdict, this does not, 



by itself, warrant the judge in ordering a new trial.            Rather, “a judge should vacate a 



jury’s verdict and grant a new trial under Criminal Rule 33 only when the evidence ... 



is so one-sided that the jury’s contrary view of the case is plainly unreasonable and 

unjust.”  Id. at 234. 1 



                When the district court denied White’s motion for a new trial, the district 



court referred to the “plainly unreasonable and unjust” test, but the court also referred 



to another formulation of the test. The district court declared that it was legally required 



to deny White’s motion if there was “[any] evidentiary basis for the jury’s decision”. 



                A judge deciding a motion for a new trial is not supposed to ask whether 



there is any conceivable evidentiary basis for the jury’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 judge’s assessment) the evidence is so one-sided “that the jury’s contrary view 



of   the case   is   plainly   unreasonable   and   unjust”,   even   though   there might   be   some 



conceivable view of the evidence that would provide a legal justification for the jury’s 



    1   Citing Howell v. State, 917 P.2d 1202, 1212 (Alaska App. 1996). 



                                                 – 2 –                                             2389 


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

verdict — 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,   “[any]   evidentiary   basis   for   the   jury’s 



decision”, 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 judge’s denial of a request for a new trial (on the ground that the jury’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 jury’s verdict to be reasonable, and the appellate 



court is asked to review the trial judge’s ruling — i.e., asked to decide whether it was 



an abuse of discretion for the trial judge to uphold the jury’s verdict. 



                When the district court denied White’s motion for a new trial, the court 



relied   on   both   the   “plainly   unreasonable   and   unjust”   formulation   and   the   “[any] 



evidentiary basis” formulation. Because one of these formulations is inapplicable to the 



question before the district court, we must vacate the district court’s decision and direct 



the district court to reconsider White’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 White’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). 



                                                  – 3 –                                              2389 

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