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Berezyuk v. State (10/20/2017) ap-2572

Berezyuk v. State (10/20/2017) ap-2572

                                                                                                   NOTICE
  

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                               IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



YURI BEREZYUK,  

                                                                                                                               Court of Appeals No. A-12188  

                                                                   Appellant,                                                 Trial Court No. 3PA-14-617 CR  



                                                  v.  

                                                                                                                                                    O P I N I O N  

STATE OF ALASKA,  



                                                                   Appellee.                                                    No. 2572 - October 20, 2017  



                                  Appeal f                        

                                                      rom the Superior Court, Third Judicial District, Palmer,  

                                  Kari Kristiansen, Judge.  



                                  Appearances:   Glenda Kerry, Law Office of Glenda J. Kerry,  

                                                                                                                                                

                                  Girdwood, for the Appellant.  Terisia K. Chleborad, Assistant  

                                                                                                            

                                  Attorney General, Office of Criminal Appeals, Anchorage, and  

                                                                                                      

                                  Jahna Lindemuth, Attorney General, Juneau, for the Appellee.  

                                                                                                      



                                  Before:  Mannheimer, Chief Judge, and Allard, Judge.  



                                  Judge ALLARD.  



                                  A jury found Yuri Berezyuk guilty of second-degree misconduct involving                                                                                          



a controlled substance (possession of heroin with the intent to distribute) and fourth-                                                                                                                  



                                                                                                                                                                                       1  

degree misconduct involving a controlled substance (simple possession)                                                                                                                                 

                                                                                                                                                                                          after Wasilla  



         1       These guiltyverdicts merged at sentencing, resulting in a single conviction for second-    



                                                                                                                                                                                          (continued...)  


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

police found Berezyuk slumped over the wheel of his brother's car and in possession of                                                                                                                                               



 14 grams of heroin and other drug paraphernalia.                                                                                            At trial, the prosecutor sought to                                                      



introduce evidence of Berezyuk's prior conviction for possession of heroin with intent                                                                                                                                     



to distribute (which occurred ten years earlier) as evidence of Berezyuk's intent to                                                                                                                                                



distribute the heroin found in the current case. The superior court overruled the defense                                                                                                                             



attorney's objection to this evidence, concluding that evidence of the prior conviction                                                                                                       



was admissible under                                       Bingaman v. State                                   as evidence of a relevant "character trait" that                                                                  



                                                                                                                                                               2  

"tends to prove [Berezyuk's] intent [to distribute heroin]."                                                                                                       



                                                                                                                                                                                                                        

                                    On appeal, Berezyuk argues that the superior court applied the wrong  



                                                                                                                                                                                                               

evidentiary standard and erroneously permittedtheprosecutor to use the prior conviction  



                                                                                                                                                                              

as character evidence at trial.  We agree with Berezyuk that the superior court applied  



                                                                                                                                                                

the wrong evidentiary standard and that the court failed to conduct the proper analysis  



                                                                                                                                                                                                          

under Alaska Evidence Rules 404(b)(1) and 403. We also conclude that the prosecutor's  



                                                                                                                                                                                                                    

overt use of the prior distribution conviction as character evidence at trial unfairly  



                                                                                                                                                                                                                               

prejudiced Berezyuk andrequires reversal ofhis convictionfor possession ofheroin with  



                                                                                                                                                          

the intent to distribute (but not his conviction for simple possession).  



                                                                                                                                                                                                                         

                                    Berezyuk also raises a second issue on appeal.  In addition to the felony  



                                                                                                                                                                                                                

drug convictions, Berezyuk was also convicted of various misdemeanors, including  



                                                                                                                                                                                                                                   

giving false information to a peace officer based on his falsely identifying himself as his  



                                                                                                                                                                                                         

brother  Ivan  when  he  was  arrested.                                                                        Berezyuk  challenges  this  false  information  



                                                                                                                                                                                                                   

conviction, arguing that he was prejudiced by the prosecutor's introduction of evidence  



          1       (...continued)  



degree misconduct involving a controlled substance.  



         2        See Bingaman v. State, 76 P.3d 398 (Alaska App. 2003) (addressing admissibility of   



evidence  of   prior  domestic  violence  acts  offered  as   character  evidence  under  Alaska  

Evidence Rule 404(b)(4)).  



                                                                                                               - 2 -                                                                                                       2572
  


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

relating to two post-arrest encounters with the police in which Berezyuk again falsely                                                                                                                                                                                                                                                                                                                                                                                       



 claimed to be his brother. For the reasons explained here, we find no merit to this claim.                                                                                                                                                                                                                                                                                                                                                                                      



                                      Background facts and prior proceedings                                                                                                                              



                                                                              On   December   15,   2013,   Wasilla   Police   Department   Officer  Michael  



Bonadurer responded to a call for a welfare check after a man was observed slumped                                                                                                                                                                                                                                                                                                                                                                                



 over the wheel of a car in Wasilla.                                                                                                                                                                 When Officer Bonadurer ran the license plate on the                                                                                                                                                                                                                                           



 car, it came back as registered to Ivan Berezyuk.                                                                                                                                                                           



                                                                              Officer Bonadurer approached the vehicle and noticed tin foil and a glass                                                                                                                                                                                                                                                                                                                         



tube in the driver's hands.                                                                                                                                On the front passenger seat, there was an open sunglasses                                                                                                                                                   



 case with a small baggie containing a brown, tar-like substance that turned out to be                                                                                                                                                                                                                                                                                                                                                                                                               



heroin.  



                                                                              Officer Bonadurer knocked on the car's window to waken the driver, and                                                                                                                                                                                                                                                                                                                                           



he directed the driver to open the door.                                                                                                                                                                                                       Instead of opening the car door, the driver                                                                                                                                                                                     



 "mess[ed]" with the drug paraphernalia on the passenger seat, and then drove away,                                                                                                                                                                                                                                                                                                                                                                                             



throwing the sunglasses case out of the window as he fled.                                                                                                                                                                                                                                                                                         A chase ensued and, within                                                                                                  



 a short time, the driver was apprehended.                                                                                                                      



                                                                              Initially, thedriver identified himself as "Ivan Berezyuk," and he was taken                                                                                                                                                                                                                                                                                                                           



to jail, booked, and released on bail as Ivan Berezyuk. However, fingerprint analysis and                                                                                                                                                                                                                                                                                                                                                                                                       



 a search of DMV records revealed that the driver was actually Ivan's brother, Yuri                                                                                                                                                                                                                                                                                                                                                                                                    



Berezyuk.   



                                                                             After retracing the route the car had taken during the police chase, the                                                                                                                                                                                                                                                                                                                                           



police   found   the   sunglasses   case.     The   case   held   14   grams   of   heroin,   valued   at  



 approximately   $7000.     A   search   of   the   car   also  revealed   a   digital   scale   and   Yuri  



Berezyuk's cell phone.                                                                       



                                                                                                                                                                                                                                             -  3 -                                                                                                                                                                                                                                 2572
  


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

                        The State indicted Berezyuk on one count of second-degree misconduct                                            



                                                                                                                                            3  

involving a controlled substance (possessing heroin with intent to distribute)                                                                         

                                                                                                                                              and one  



                                                                                                                                       

count  of  fourth-degree  misconduct  involving  a  controlled  substance  (knowingly  



                                   4  

                                                                                                                                                  

                                      The State also charged Berezyuk with three misdemeanors: failure  

possessing heroin). 

                                                                                5   providing  false information  concerning  

                                                                                                                                        

                                                                   

to  stop  at the direction  of a peace  officer, 

identity,6  and violating conditions of release.7  

                                                                    



                        At the beginning of Berezyuk's trial, the prosecutor sought to introduce  

                                                                                                                                            



evidence of Berezyuk's prior conviction for possession of heroin.  The prior conviction  

                                                                                                                                          



arose from an incident in 2004 in which Berezyuk and his brother Ivan were arrested for  

                                                                                                                                                        



stealing a camera from a kiosk in the Anchorage airport.   When the police searched  

                                                                                                                                             



Berezyuk after the arrest, they discovered two bricks of heroin in Berezyuk's jacket,  

                                                                                                                                                 



along with lubricating gel and an unopened package of party balloons in Berezyuk's bag.  

                                                                                                                                                               



The two bricks of heroin weighed almost 320 grams, and were valued at approximately  

                                                                                                                                   



$250,000.  Berezyuk admitted to the police that he was waiting for a phone call so that  

                                                                                                                                                       



he could deliver the heroin to a person in Wasilla.  Berezyuk also told the police that, in  

                                                                                                                                                          



exchange for delivering the heroin, he was supposed to receive three to four grams for  

                                                                                                                                                        



his personal use.  Based on this evidence, Berezyuk was convicted of second-degree  

                                                                                                                                   



      3     Former AS 11.71.020(a)(1) (2014).   



      4  

                                                                                       

            Former AS 11.71.040(a)(3)(A)(ii) (2014).  Berezyuk was also charged with a second  

                                                                                          

count  of  fourth-degree  misconduct  involving  a  controlled  substance  for  possessing  

methamphetamine, but this charge was dismissed prior to trial.  



      5     AS 28.35.182(b).  Berezyuk does not challenge this conviction on appeal.  



      6     AS 11.56.800(a)(1)(B).  



      7     Former AS 11.56.757(b)(1) (2014).  Berezyuk does not challenge this conviction on  

                                                                            

appeal.  



                                                                          - 4 -                                                                    2572
  


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

misconduct   involving   a   controlled   substance   for   possessing   heroin   with   intent   to  



distribute.  



                                    The prosecutor argued that this prior conviction should be admitted at trial                                                                                                           



because it was relevant to prove Berezyuk's intent to distribute the heroin found in the                                                                                                                                     



current case. Berezyuk's attorney objected and argued that the jury was likely to use the                                                                                                                                    



prior conviction for an improper purpose.                                                                       The superior court overruled the objection.                                               



                                    However, in overruling the defense attorney's objection, the superior court                                                                                                         



did not directly address whether the evidence was being offered for a non-propensity                                                                                                       



purpose;   nor   did   the   court   analyze   its   admissibility   under   Evidence   Rules   404(a),  



404(b)(1), and 403.                                   Instead, the court erroneously applied the test announced by this                                                                                                    



Court in               Bingaman v. State                              , which applies to evidence of prior domestic violence offered                                                                               



                                                                                                                                             8  

                                                                                                                                                                                                           

as character evidence under Evidence Rule 404(b)(4).                                                                                             After engaging in this erroneous  



                                                                                                                                                                                                                     

analysis,  the  court  then  concluded  that  the  prior  conviction  was  admissible  under  



                                                                                                                                                                                                                

Bingaman because the circumstances of the prior conviction were "sufficiently similar"  



                                                                                                                                                                                                                    

to the current case and because Berezyuk's prior conviction for distribution of heroin  



                                                                                                                                                                                                            

was a relevant "character trait" that "tend[ed] to prove [Berezyuk's] intent [to distribute  



                                                                            

heroin]" in the current case.  



                                                                                                                                                                                                                      

                                    In  line  with  this  ruling,  the  prosecutor  then  used  Berezyuk's  prior  



                                                                                                                                                                    

conviction as character evidence at trial.  For example, at the beginning of her closing  



                                                                                                                                                                                                                            

argument, theprosecutor emphasized that theprior convictionshowedthatBerezyuk was  



                                                                               

an "established drug dealer":  



                                                                                                                                                                      

                                   You've got a guy convicted [in] a 2004 case ... for possessing  

                                                                                                                                                                                            

                                   with the intent to distribute a pretty significant amount of  

                                                                                                                                                                                   

                                   heroin by all standards.  A quarter of a million dollars worth  

                                                                                                                                                                                     

                                    of  heroin  is  a  huge  amount.                                                   This  is  an  established  drug  



         8        Bingaman v. State, 76 P.3d 398, 415-16 (Alaska App. 2003).  



                                                                                                            - 5 -                                                                                                     2572
  


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

                                                                               dealer, not rinkydink possession and share some with your                                                                                                                                                                                                                                                                           

                                                                               buddy and call that distribution.                                                                                                                                                              It's a real, live distribution                                                               

                                                                               case. He's got balloons, and personal lubricant, and masking                                                                                                                                                                                                                                                   

                                                                               agents in his bag at the airport, heroin conviction.                                                                                                                                                                              

                                                                                                                      Fast forward to 2014. The police respond and find the                                                                                                                                                                                                                                                   

                                                                                same individual [in possession of heroin].                                                                                                                                                            



Later in her closing argument, the prosecutor reminded the jury that "[t]he airport case                                                                                                                                                                                                                                                                                                                                                                                                            



was a huge amount of heroin."                                                                                                                                                                She also reminded the jury that the officer who was                                                                                                                                                                                                                                                      



involved in Berezyuk's prior casehadtestifiedthat                                                                                                                                                                                                                                                    Berezyuk was distributing "$250,000                                                                                                                        



worth   of   heroin"   and   "you   have   that   case   as   evidence   of   [Berezyuk's]   intent"   to  



 distribute the heroin found in the current case.                                                                                                                                                                                                  



                                                                               Lastly, at the very end of her closing argument, the prosecutor argued that                                                                                                                                                                                                                                                                                                                                              



it was "laugh[able]" to think that a person convicted of distributing such a large amount                                                                                                                                                                                                                                                                                                                                                                                        



 of heroin in the past was not also guilty of intending to distribute the heroin found in his                                                                                                                                                                                                                                                                                                                                                                                                                



possession in this case:                                                                                  



                                                                                Say the story out loud.                                                                                                               Say it out loud to each other.                                                                                                                                                  And if   

                                                                               you can do it and exonerate Yuri Berezyuk without laughing,                                                                                                                                                                                                                                              

                                                                               then maybe there's a reasonable defense.                                                                                                                                                                                                              But there is not a                                                                                 

                                                                               reasonable defense.                                                                                                   It just - it doesn't even pass the laugh                                                                                                                                                                 

                                                                               test that somebody who had the intent to distribute that much                                                                                                                                                                                                                                                                   

                                                                               drugs in 2004, when he's contacted with this much drugs in                                                                                                                                                                                                                                                                                          

                                                                               2014, hides them, runs from                                                                                                                                        the police, lies to the police, isn't                                                                                                                               

                                                                               knee deep in it this time as well.                                                                                                                             



                                                                               Followingdeliberations,                                                                                                                       thejury                                       foundBerezyukguiltyofall                                                                                                                                            charges. This    



 appeal followed.   



                                                                                                                                                                                                                                                  -  6 -                                                                                                                                                                                                                                     2572
  


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

                     The superior court erred in admitting evidence of the prior conviction and                                                                                                                                         

                     allowing it to be used as propensity evidence at trial                                                                                            



                                         Alaska   Evidence   Rules   404(a)   and   404(b)(1)   codify   the   common-law  



doctrine that prohibits the admission of evidence of a person's other crimes, wrongs, or                                                                                                                                                                         



acts "if the sole purpose for offering the evidence is to prove the character of a person                                                                                                                                                     



in order to show that the person acted in conformity therewith."                                                                                                                                  Under Evidence Rules                                



404(b)(1) and 403, such evidence is admissible only if it is relevant for some other,                                                                                                                                                                



non-character purpose, and if the trial judge is convinced that this non-character purpose                                                                                                                                                      



is not outweighed by the risk of unfair prejudice that the jury will use this evidence                                                                                                                                                      

improperly.9  



                                                                                                                                                                                                                                                            

                                         Here,  the  prosecutor  claimed  that  Berezyuk's  prior  conviction  for  



                                                                                                                                                                                                                                                 

distribution ofheroinwasrelevantforthepurportedly non-propensity purposeofproving  



                                                                                                                                                                                                                                                                 

Berezyuk's "intent" to distribute heroin.  But simply using one of the words listed in  



                                                                                                                                                                                                                       

Rule 404(b)(1) does not mean that the evidence is actually relevant for a non-propensity  



                           10  

purpose.                                                                                                                              

                                   The prosecutor's explanation of her theory of admissibility made clear that  



the prosecutor intended to use (and ultimately did use) Berezyuk's prior conviction as  



                                                                                                                                                                                                                                                         

character or propensity evidence - i.e., to establish that Berezyuk was a proven drug  



                                                                                                                                                                                                                                                            

dealer who had been convicted of distributing large amounts of heroin in the past and  



                                                                                                                                                                                                                                                                  

who could therefore be expected to have acted in conformity with that prior conduct in  



                                                    

the current case.  



          9         See  Willock  v.  State,  400  P.3d  124,  127  (Alaska  App.  2017)  (explaining  these  



principles).  



           10        Cf. Willock, 400 P.3d at 127 ("[A] trial judge must not allow a prosecutor (or a   



defense attorney, for that matter) to simply recite the various permitted purposes listed in                                                                                          

Rule 404(b)(1) and to make generalized assertions about how a person's past acts show their  

 'intent', 'plan', 'knowledge', or 'absence of mistake or accident.'").  



                                                                                                                             -  7 -                                                                                                                   2572
  


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

                                    Thesuperior court's                                   ruling implicitly recognizedtheunderlyingpropensity                                                                



nature of the prosecutor's argument for admissibility of the prior conviction.                                                                                                                                The court   



did not identify a non-propensity use of the evidence nor did it analyze the admissibility                                                                                                             



of the prior conviction under Evidence Rules 404(b)(1) and 403. Instead, the court                                                                                                                                        



agreed with the prosecutor that the prior conviction was a relevant "character trait" that                                                                                                                                     



"tend[ed] to prove" Berezyuk's "intent" to distribute heroin, and the court analyzed the                                                                                                                                         



admissibility of this evidence under the  Bingaman test - a test designed to assess the                                                                                                                                          



                                                                                                                                                                                      11  

admissibility of character evidence under Evidence Rule 404(b)(4).                                                                                                                           



                                                                                                                                                                                                       

                                    This was error. Because Bingaman is a test for evaluating the admissibility  



                                                                                                                                                                                                                                      

of evidence that is expressly being offered to establish a defendant's character (under a  



                                                                                                                                                                                                             

rule that creates an exception to the normal ban on character evidence), the Bingaman  



                                                                                                                                                                                                                                  

test  is  an  inappropriate  legal  framework  with  which  to  assess  the  admissibility  of  



                                                                                                                                                                                                                                      

evidence under Rule 404(b)(1) - a rule that expressly prohibits  character evidence.  



                                                                                                                                                              

                                    We note that the misuse of Bingaman in this context is not unique to this  



                                                                                                                                                                                                             

case.  We have seen other cases where judges have inappropriately used the Bingaman  



                                                                                                                                                                                       12  

                                                                                                                                                           

test to analyze the admissibility of evidence under Rule 404(b)(1).                                                                                                                                                        

                                                                                                                                                                                               But those cases  



                                                                                                                                                                                                                              

typically involved situations where the non-propensity purpose of the evidence was  



                                                                                                                                                                                                                                   

clear, and the judge's announced reliance on Bingaman  appeared to be an error of  



                                                                                                 13  

                                                                                                        

nomenclature rather than substance. 



         11       Bingaman, 76 P.3d at 415-16 (Alaska App. 2003).  



         12       See, e.g., Rollins v. State, 2015 WL 4874789, at *3 (Alaska App. Aug. 12, 2015)  



(unpublished).  



         13       Id. (concluding that although the trial court mistakenly referred to the                                                                                                         Bingaman  test,  



an examination of the trial court's actual analysis of the proffered evidence indicated that the                                    

court properly engaged in the correct analysis under Rule 404(b)(1) and Rule 403).  



                                                                                                              -  8 -                                                                                                      2572
  


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

                                                                     Here, however, the superior court's reliance on                                                                                                                                                                                               Bingaman  was premised on  



 a fundamental misunderstanding of when evidence of a defendant's character trait is                                                                                                                                                                                                                                                                                                                                                                 



 admissible. And                                                                      the court's error directly led to the prosecutor using the prior conviction  



 as propensity and character evidence at trial.                                                                                                                                                               



                                                                     On   appeal,   the   State   argues   that   there   were,   in   fact,   legitimate   non- 



propensity uses for Berezyuk's prior conviction.                                                                                                                                                                                                             The State points out specifically that   



Berezyuk's defense in this case was that the drugs belonged to his brother - and that                                                                                                                                                                                                                                                   



Berezyuk's prior case also involved Berezyuk's brother.                                                                                                                                                                                                                                             While the State has identified                                                                           



 an arguable non-character ground of relevance, the record of Berezyuk's trial clearly                                                                                                                                                                                                                                                                                                                                     



reveals that the prosecutor's primary use of this evidence was to urge the jurors to                                                                                                                                                                                                                                                                                                                                                               



improperly view the evidence as character evidence.                                                                                                                                                                          



                                                                     For much the same reason, we conclude that the limiting instruction given                                                                                                                                                                                                                                                                                    



in this case was insufficient to cure the trial judge's error.                                                                                                                                                                                                                                           This instruction told the jury                                                                                                   



that   they   could   only   use   evidence   of   Berezyuk's   "other   conduct"   (i.e.,  his  prior  



conviction)   to   establish   "motive,   opportunity,  intent,   identity,   preparation,   plan,  



knowledge,  or  absence   of   mistake   or   accident"   -   in   other   words,   Evidence   Rule  



404(b)(1)'s list of potential permitted purposes. But the jury was unlikely to understand                                                                                                                                                                                                                                                                                                             



the purpose of this instruction, or its importance in Berezyuk's case.                                                                                                                                                                                                                                                                                                     The prosecutor   



overtly asked the jurors to use Berezyuk's prior conviction as propensity evidence. And                                                                                                                                                                                                                                                                                                                                                 



the court's limiting instruction was a generic list of technical legal terms, devoid of any                                                                                                                                                                                                                                                                                                                                                 

 explanation as to how these concepts might relate to the facts of Berezyuk's case.                                                                                                                                                                                                                                                                                                                                                    14  



                  14               See  Willock,  400  P.3d  at  127  (noting  the  difference  between  the  technical  legal  



                                                                                                                                                                                                                                                                                                                                                                                                 

meaning of the word  "intent" as it pertains to Rule 404(b)(1) and the way it is used in  

"everyday speech").  



                                                                                                                                                                                                                    -  9 -                                                                                                                                                                                                        2572
  


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

                                                                                    The State also argues that any error in introducing the prior conviction was                                                                                                                                                                                                                                                                                                                                                                       



harmless because, according to the State, the evidence was overwhelming that Berezyuk                                                                                                                                                                                                                                                                                                                                                                                                              



possessed the heroin with intent to distribute it.                                                                                                                                                                                                                                                          



                                                                                    We agree with the State that the evidence of Berezyuk's                                                                                                                                                                                                                                                                                                        possession  of the   



heroin   was   overwhelming.     Despite   Berezyuk's   claim that                                                                                                                                                                                                                                                                                                                                      he   was   unaware   of   the  



 contents of the sunglasses case, all of Berezyuk's actions - his "messing" with the drug                                                                                                                                                                                                                                                                                                                                                                                                                                          



paraphernalia on the passenger seat when the police officer woke him up, his ensuing                                                                                                                                                                                                                                                                                                                                                                                                                         



 flight from the officer, his throwing the sunglasses case out of the car, and his false claim                                                                                                                                                                                                                                                                                                                                                                                                                               



that he was his brother Ivan - pointed to his awareness that the sunglasses case held                                                                                                                                                                                                                                                                                                                                                                                                                                              



 illegal drugs.                                                                     We therefore agree with the State that the error was harmless with regard                                                                                                                                                                                                                                                                                                                                                          



to the charge of simple possession, and we uphold Berezyuk's conviction for fourth-                                                                                                                                                                                                                                                                                                                                                                                                                               



 degree misconduct involving a controlled substance.                                                                                                                                                                                                                                                                                          



                                                                                    We come to a different conclusion, however, with regard to the charge of                                                                                                                                                                                                                                                                                                                                                                                      



possession with intent to distribute.                                                                                                                                                                                            Precisely because the evidence was so strong that  



Berezyuk knowingly possessed the heroin, the prosecutor's primary use of Berezyuk's                                                                                                                                                                                                                                                                                                                                                                                                    



prior   conviction   was   to  prove   the   additional   allegation   that   Berezyuk   intended   to  



 distribute this heroin.                                                                                                                  



                                                                                    Although there was evidence of Berezyuk's intent to distribute apart from                                                                                                                                                                                                                                                                                                                                                                    



his prior conviction - for example, the high monetary value of the heroin, and the fact                                                                                                                                                                                                                                                                                                                                                                                                                                                 



that there was a drug-weighing scale in the car - the prosecutor's closing argument                                                                                                                                                                                                                                                                                                                                                                                                               



relied heavily on the prior conviction as proof of Berezyuk's intent to distribute the                                                                                                                                                                                                                                                                                                                                                                                                                                                    



heroin in this case.                                                                                                    Given this, we conclude that the trial court's error in admitting this                                                                                                                                                                                                                                                                                                                                          



 evidence likely had an appreciable effect on the jury's verdict on the second-degree                                                                                                                                                                                                                                                                                                                                                                             



                                                                                                                                                                                                                                                              -  10 -                                                                                                                                                                                                                                                       2572
  


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

controlled substance misconduct charge.  We therefore conclude that we must reverse                                  

that conviction.         15  



                                                                                                                   

          Berezyuk's argument regarding his false information conviction  



                                                                                                                                   

                     In a separate argument, Berezyuk challenges his conviction for giving false  



                                                                                                                                           

information  to  the  police  (i.e.,  for  falsely  identifying  himself  as  his  brother  Ivan).  



                                                                                                                                    

Berezyuk argues that this conviction should be reversed because it was error for the trial  



                                                                                                                               

court  to  allow  the  prosecutor  to  introduce  evidence  of  two  other  instances  where  



Berezyuk had encounters with the police and falsely identified himself as his brother.   



                                                                                                                                    

                     The first incident took place two days after Berezyuk was released on bail  



                                                                                                                                  

in the present case:  Berezyuk went to the impound lot where his brother's car had been  



                                                                                                                                     

towed, and he claimed that he was his brother in an attempt to get his brother's car out  



                                                                                                                             

of the lot.  The second incident occurred a few days later, when Berezyuk was stopped  



                                                                                   

for reckless driving, and he again claimed to be his brother.  



                                                                                                                                     

                     The trial judge prohibited the prosecutor from introducing the reason for  



                                                                                                                                   

the  traffic  stop,  but  the  court  otherwise  permitted  the  prosecutor  to  introduce  this  



                                                                                                                      

evidence that Berezyuk had falsely identified himself as his brother Ivan.  



                                                                                                                                     

                     Onappeal,Berezyukarguesthat therewas no legitimatenon-propensity use  



                                                                                                                              

for this evidence.   But even if we were to assume this is true, any error was clearly  



                                                                                                                                       

harmless.  The evidence was overwhelming that Berezyuk falsely identified himself to  



                                                                                                                       

the police, and Berezyuk's attorney offered no real defense to this charge.  



      15   See Love v. State, 457 P.2d 622, 634 (Alaska 1969).  



                                                                -  11 -                                                         2572
  


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

          Conclusion  



                    Berezyuk's conviction for second-degree controlled substance misconduct  

                                                                                                               



is  REVERSED.              His  other  convictions,  including  his  conviction  for  fourth-degree  

                                                                                    



controlled substance misconduct, are AFFIRMED.  This case is REMANDED to the  

                                                                                                                           



superior court for further proceedings consistent with this decision.  

                                                                                                       



                                                           -  12 -                                                     2572
  

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