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Adam Keith Kasgnoc Sr. v State of Alaska (6/28/2019) ap-2648

Adam Keith Kasgnoc Sr. v State of Alaska (6/28/2019) ap-2648

                                                                 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  



ADAM KEITH KASGNOC SR.,  

                                                                                    Court of Appeals No. A-12091  

                                            Appellant,                           Trial Court No. 3AN-12-08627 CR  



                                 v.  

                                                                                                  O P I N I O N  

STATE OF ALASKA,  



                                            Appellee.                                  No. 2648 - June 28, 2019  



                      Appeal  from  the  Superior   Court,  Third  Judicial  District,  

                                                                      

                      Anchorage, Michael R. Spaan, Judge.  



                      Appearances:    Michael  L.  Barber,  Barber  Legal  Services,  

                      Boston, Massachusetts (opening brief), and Michael Horowitz,  

                      Law Office of Michael Horowitz, Palmer (reply brief), under  

                                                                                                      

                      contract with the Office of Public Advocacy, Anchorage, for the  

                                                                 

                      Appellant.   Tamara E. DeLucia, Assistant Attorney General,  

                                                                                                             

                      Office of Criminal Appeals, Anchorage, and Jahna Lindemuth,  

                                       

                      Attorney General, Juneau, for the Appellee.  



                      Before:   Allard, Chief Judge, and Wollenberg and Harbison,  

                                                             

                      Judges.  



                      Judge WOLLENBERG.  



                      Adam Keith Kasgnoc Sr. appeals his convictions for second-degree sexual                                         



assault and incest.              On appeal, he argues that the trial court erred in admitting, under                                              


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

Alaska Evidence Rule 404(b)(3), evidence related to his prior sexual abuse of a minor.                                                                                                                                                                  



For the reasons explained in this opinion, we reject Kasgnoc's claim, and we affirm his                                                                                                                                                      



convictions.   



                    Underlying facts                                 



                                      In August 2012, the State accused Kasgnoc of sexually penetrating his                                                                                                                                  



twenty-year-old daughter,L.K.,                                                            whileshewas                            incapacitated or unawareofthesexual act.                                                                               



On the night of the incident, L.K. was sleeping at Kasgnoc's apartment.  She reported                                                                                                                                         



that, during the night, she awoke to find Kasgnoc on top of her, inserting his penis into                                                                                                                                                  



her vagina. L.K.                               pushed Kasgnoc off, dressed, and left the apartment. L.K.                                                                                                        subsequently  



reported the assault to the police.                                                             

                                      Agrandjury                          indicted Kasgnocfor second-degreesexualassaultandincest.                                                                                                                   1  



                                                                                                                                                                                                                                                

Kasgnoc was tried twice.  The first trial ended in a mistrial after the jury deadlocked.  A  



                                                                                                                                           

second jury convicted Kasgnoc of both charges.  



                                                                                                                                                                                                                                 

                                      Kasgnoc testified in his defense at both trials, providing a different version  



                                                                                                                                                                                                                                             

of events than L.K. Kasgnoc testified that after L.K. arrived at his apartment, he told her  



                                                                                                                                                                                                                                                        

that she could sleep on the living room floor; he then returned to his room to sleep.  



                                                                                                                                                                                                                                       

Sometime later, he awoke to find that his shorts had been removed and L.K. was lying  



                                                                                                                                                                                                                                              

naked in his bed, touching his penis.  Kasgnoc testified that he told L.K. to get out of his  



                                                                                                           

apartment, and L.K. dressed and left.  



          1        AS 11.41.420(a)(3)(B) & (C) and AS 11.41.450(a)(1), respectively.  



                                                                                                                    - 2 -                                                                                                                2648
  


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

          The trial court's ruling on the admissibility of evidence of Kasgnoc's prior  

                                                                                                                   

          sexual abuse of a minor  

                                       



                    In 2001, prior to the events in this case, Kasgnoc was convicted of sexually  

                                                                                                                         



abusing another one of his daughters, V.K., beginning when she was six years old.  

                                                                                                                                      



During his testimony in the present case, Kasgnoc acknowledged that he initially blamed  

                                                                                                                          



V.K. for the abuse.  He also testified that on some occasions, V.K. initiated the sexual  

                                                                                                                           



contact.  Kasgnoc said that his abuse of V.K. lasted about four years.  

                                                                                                             



                    During Kasgnoc's first trial on the current charges, the prosecutor argued  

                                                                                                                           



that evidence of Kasgnoc's prior abuse of V.K. was admissible under Alaska Evidence  

                                                                                                                       



Rule 404(b)(3) if Kasgnoc raised a consent defense. Evidence Rule 404(b)(3) provides,  

                                                                                                                       



in relevant part:  

                  



                    In a prosecution for a crime of sexual assault in any degree,  

                                                                                                      

                    evidence of other sexual assaults or attempted sexual assaults  

                                                                                                     

                    by  the  defendant  against  the  same  or  another  person  is  

                                                                                                             

                    admissible if the defendant relies on a defense of consent.  

                                                                                                 



The trial court disagreed that Kasgnoc's defense was properly characterized as a consent  

                                                                                                                         



defense.  Ultimately, however, Kasgnoc's attorney agreed to introduce evidence of the  

                                                                                                                                



prior  conduct during his direct examination of Kasgnoc.   The first trial ended in a  

                                                                                                                                   



mistrial.  



                    Before Kasgnoc's second trial, the prosecutor filed a motion to introduce  

                                                                                                                       



evidence of the prior conduct under Alaska Evidence Rule 404(b)(4).  Evidence Rule  

                                                                                                                              



404(b)(4) provides:  

                                



                    In a prosecution for a crime involving domestic violence or  

                                                                                                              

                    of interfering with a report of a crime involving domestic  

                                                                                                   

                    violence,  evidence  of  other  crimes  involving  domestic  

                                                                                                  

                    violence by the defendant against the same or another person  

                                                                                                       

                    or of interfering with a report of a crime involving domestic  

                                                                                                   

                    violence   is   admissible.                In   this   paragraph,   "domestic  

                                                                                                



                                                               -  3 -                                                         2648
  


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

                                         violence" and "crime involving domestic violence" have the                                                                                                                    

                                         meanings given in AS 18.66.990.                                       



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



                                         By then, Kasgnoc's case had been reassigned to a different superior court                                                                                                                                       



judge.   That judge ruled that, if Kasgnoc relied on a consent defense, evidence of his                                                                                                                                                                        



 prior conduct involving V.K. would be admissible under Rule 404(b)(3).                                                                                                                                                                The court   



 declined to rely on Rule 404(b)(4), concluding that Rule 404(b)(3) governed to the                                                                                                                                                                           



 exclusion ofRule 404(b)(4) becauseRule404(b)(3) was specificallyapplicableto                                                                                                                                                                       sexual  



 assaults.    The court described Rule 404(b)(4) as "more lenient" than Rule 404(b)(3)                                                                                                                                                    



 because Rule 404(b)(3) required a "consent" defense as a prerequisite in a sexual assault                                                                                                                                                          



 case. The court acknowledged that incest was "a crime involving domestic violence" for                                                                                                                                                                         



                                                                                       2  

 purposes of Rule 404(b)(4),                                                                                                                                                                                                                              

                                                                                           but the court nonetheless decided to rely solely on Rule  



                                  

 404(b)(3).  



                                                                                                                                                                                                                                        

                                         The State filed a motion to reconsider, arguing that evidence of Kasgnoc's  



                                                                                                                                                                                                                                                             

 prior conduct was admissible under Rule 404(b)(4) because the charged offenses and  



                                                                                                                                                                                                                                  3  

                                                                                                                                                                                                                                       

                                                                                                                                                                                                      

 Kasgnoc's prior conduct qualified as crimes involving domestic violence. 



                                                                                                                                                                                                                                                               

                                         The trial judge denied the State's motion.  The judge again ruled that the  



                                                                                                                                                                                                                                         

 "specific rule for sexual assault" applied over the "general rule for domestic violence."  



                                                                                                                                                                                                                                                                 

                                         The judge also noted that, without Kasgnoc raising a consent defense, he  



                                                                                                                                                                                                                                                                           

 considered admission of evidence of the prior conduct more prejudicial than probative.  



           2         See AS 18.66.990(3)(A) (including, in the definition of "crime involving domestic                                                                                    



 violence," crimes against a person under AS 11.41 when the crime is committed by one                                                                                                                                                                        

 "household  member"  against  another  "household  member").     "Household  member"  is  

 separately defined in AS 18.66.990(5).  



           3         See AS 18.66.990(3) (defining "crime involving domestic violence").  



                                                                                                                             - 4 -                                                                                                                         2648
  


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

The court then analyzed the                       Bingaman   factors and concluded                          that  he would admit      



                                                                                                              4  

evidence of the prior conduct if Kasgnoc raised a consent defense.                                                



                                                                                                                                

                      At trial,Kasgnocraised adefensethat thecourtcharacterized as a"consent"  



                                                                                                                                 

defense.  As we described earlier, Kasgnoc testified that he woke up to L.K. initiating  



                                                                                    

sexual contact with him, and he told her to leave.  



                                                                                                                                           

                      The  prosecutor  devoted  a  significant  portion  of  the  State's  case  to  



                                                                                                                                           

Kasgnoc's prior abuse of V.K., focusing extensively on this prior conduct during his  



                                                                                                                                      

cross-examination of Kasgnoc.   In his closing argument, the prosecutor then relied  



                                                                                      

heavily on Kasgnoc's prior conduct for propensity purposes.  



                                               

                      Kasgnoc now appeals.  



                                                                                               

            Why we affirm the admissibility of the challenged evidence  



                                                                                                                                           

                      In admittingevidenceofKasgnoc'sprior conductunder Rule404(b)(3), the  



                                                                                                                                             

trial court relied on what Kasgnoc asserts is an improper understanding of "consent" in  



                                                                                                                                     

the context of that rule.  In his defense, Kasgnoc argued that L.K. initiated the sexual  



                                                                                                                                            

contact, and that when he awoke to L.K. touching him, he demanded that she leave.  In  



                                                                                                                                             

short, he maintained that no sexual penetration occurred.  The trial court viewed this as  



                                                                                                                              

a  "consent"  defense,  inferring  that  by  initiating  the  contact,  L.K.  was  essentially  



                        

consenting to it.  



                                                                                                                                            

                      On appeal, Kasgnoc argues that he did not raise a consent defense, and he  



                                                                                                                                       

therefore contends that evidence of his prior conduct was inadmissible under Rule  



      4    See Bingaman v. State, 76 P.3d 398, 415-16 (Alaska App. 2003) (setting out the  



                                                                                                        

factors a trial court must consider before admitting evidence of a defendant's other acts for  

propensity purposes).   



                                                                    -  5 -                                                              2648
  


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

404(b)(3).  We agree with Kasgnoc that his defense was not properly characterized as           



                                     5  

a "consent" defense.                     



                                                                                                                                                        

                        Black's Law Dictionary  defines "consent" as:  "A voluntary yielding to  



                                                                                                                                                       

whatanother proposesor desires; agreement, approval, or permission regarding someact  



                      6  

                                                                                                                                         

                         Rule 404(b)(3) is premised on this definition of "consent":  if a defendant  

or purpose." 



                                                                                                                                                      

claims that such an agreement to engage in sexual contact existed, then evidence that the  



                                                                                                                                            

defendant committed past sexual assaults (where such agreement was lacking) becomes  



                   

relevant.  



                                                                                                                                             

                        Here, Kasgnoc was not defending on the ground that he and L.K. engaged  



                                                                                                                                                     

in mutually agreed-upon sexual activity - i.e., consensual sex.  Rather, he argued that  



                                                                                                                                                        

L.K. initiated unwanted sexual contact, and that he terminated the encounter as soon as  



                                                                  

he woke up to find L.K. in his bed.  



                                                                                                                                              

                        Moreover, Kasgnoc was accused of sexually penetrating L.K.  A consent  



                                                                                                                                                        

defense presupposes that the sexual penetration occurred and that both parties agreed to  



                                                                                                                 

it.  But Kasgnoc argued that no sexual penetration occurred at all.  



                                                                                                                                                      

                        Because Kasgnoc argued that L.K. initiated the sexual contact, he did not  



                                                                                                                                                         

agree or yield to it, and no sexual penetration occurred, Kasgnoc's defense was not a  



                                                                                                                                                     

"consent"  defense.                     Accordingly,  evidence  of  Kasgnoc's  prior  conduct  was  not  



                                                            7  

                                          

admissible under Rule 404(b)(3). 



      5     Cf.  Willock  v.  State,  400  P.3d  124,  128   (Alaska  App.  2017)  (suggesting  that  



defendant's denial that any sexual penetration occurred meant that consent was not at issue).   



      6  

                                                       

            Black's Law Dictionary (10th ed. 2014), at 368.  



      7  

                                                                                                                                   

            Because we conclude that evidence of Kasgnoc's prior conduct was not admissible  

                                                                         

under Rule 404(b)(3) because he did not raise a consent defense, we need not resolve the  

                                                                                                     

separate question of whether prior acts of sexual abuse of a minor are admissible under Rule  

                                                                                                                                

404(b)(3), since - according to the rule's express terms - it applies only to the admission  

                                                                                                                                    (continued...)  



                                                                         -  6 -                                                                    2648
  


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

                                       Thatsaid, weconcludethat,                                                      eveniftheevidenceofKasgnoc'sconduct with                                                                                



V.K.  was not admissible under Rule 404(b)(3), it was admissible under Rule 404(b)(4).                                                                                                                                       



                                       We acknowledge that the trial court disclaimed reliance on Rule 404(b)(4)                                                                                                               



as a basis of admission.                                             But this ruling rested on the assumption that in a sexual assault                                                                                                 



case, Rule 404(b)(3) applies to the exclusion of Rule 404(b)(4). Because we questioned                                                                                                                                      



the   validity   of   this   premise,   we   requested   supplemental   briefing   from   the   parties  



regarding  this   question   and   the   admissibility   of   the   prior-act   evidence   under   Rule  



404(b)(4).  



                                       Havingreviewed the supplemental briefing,weconcludethat thetrial court  

                                                                                                                                                                                                                                            



erred,   as a matter                                   of law,                 in ruling                    that subsections                                  (b)(3)  and (b)(4)                                    are mutually   



exclusive.   It is true that the two provisions have different prerequisites.                                                                                                                                       As to sexual        



assault prosecutions, Rule 404(b)(3) is premised on a defendant's reliance on a particular  

                                                                                                                                                                                                                             



defense - consent.  In contrast, Rule 404(b)(4) is premised on the notion that there is  

                                                                                                                                                                                                                         



                                                                                                                                                                                                                                      8  

a pre-existing relationship between the defendant and the complaining witness.                                                                                                                                                            



                                                                                                                                                                                                        

                                       But there is clear overlap between the rules.  To define the scope of Rule  



                                                                                                                                                                                                                                         

404(b)(4), the legislature incorporated the definition of "domestic violence" set out in  



                                                                                                                                                                                                                                                

AS 18.66.990(3). Under this definition, "domestic violence" means one or more of a list  



                                                                                                                                                                                                                  9  

                                                                                                                                                                                                                       

of crimes when committed by one "household member" against another. 



          7         (...continued)  



of "other sexual assaults or attempted sexual assaults."  



          8        See Anderson v. State, 436 P.3d 1071, 1078 (Alaska App. 2018) ("[T]he hallmark of  



a crime of domestic violence is that it is a crime that is committed within the context of a pre- 

                                                                                                                                                                                                                                            

existing relationship.").  



          9        See AS 18.66.990(3) & (5).  



                                                                                                                      -  7 -                                                                                                                  2648
  


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

                      This list expressly includes any crime against a person under AS 11.41,                                          



                                          10  

including sexual assault.                                                                                                        

                                              Thus, in a sexual assault prosecution, where the defendant  



                                                                                                                                            

and the complaining witness are "household members" as defined in AS 18.66.990, and  



                                                                                                                          

the defendant argues that the sexual contact was consensual, both Rule 404(b)(3) and  



                                                                                                                                     

404(b)(4) could be implicated (depending on the nature of the defendant's prior conduct  



                                      

that the State seeks to introduce).  



                                                                                                                                      

                      There are two characteristics of Rule 404(b)(4) that temper the trial court's  



                                                                                                                                  

concern that application of that provision to sexual assault cases would unduly minimize  



                                                                                                                                          

the State's need to rely on Rule 404(b)(3).  First, to qualify for admission under Rule  



                                                                                                                                  

404(b)(4), the defendant's prior  act must also qualify as a "crime involving domestic  



                                                                                                                                             

violence."  Second, a single sexual act does not establish a "sexual relationship" for  



                                                                                     11  

                                                                                                                                            

                                                                                          Thus, absent the existence of one  

purposes of the definition of "household member." 



                                                                                                                                                

of the other statutory qualifying relationships (like a familial relationship, as here), a  



                                                                                                               

sexual assault cannot be considered a crime of domestic violence for purposes of Rule  



                                                                 

404(b)(4) by virtue of a single sexual act.  



                                                                                                                                     

                      Because Kasgnoc's prior offense (sexual abuse of a minor) and the charged  



                                                                                                                                 

offenses (second-degree sexual assault and incest) both involved Kasgnoc's biological  



                                                                                                                                          

daughters,  and  because  they  are  qualifying  offenses  under  AS  18.66.990(3),  they  



      10   See AS 18.66.990(3)(A).  The crimes of sexual assault are codified at AS 11.41.410-  



.427.  



      11   See Bates v. State, 258 P.3d 851, 860-61 (Alaska App. 2011); see also Miller v. State,  



312 P.3d 1112, 1116 (Alaska App. 2013) (noting that a single consensual sexual encounter  

does not amount to a "sexual relationship" under AS 18.66.990(5)); Leu v. State , 251 P.3d  

363, 369 (Alaska App. 2011) (holding that the defendant's ongoing friendship with another  

                                                                             

man that included occasional sexual intimacy qualified as a "sexual relationship" under  

                                                                                    

AS  18.66.990  because  "[t]his  is  not  the  type  of  non-consensual  or  short-lived  sexual  

                                                                                                                                

involvement   that   falls   outside   the   ordinary   person's   understanding   of   a   'sexual  

relationship'").  



                                                                     -  8 -                                                               2648
  


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

                                                                                                                                 12  

constitute   "crimes   involving   domestic   violence"   for   purposes   of   Rule   404(b)(4).                                    



Therefore, evidence of Kasgnoc's prior conduct involving V.K. was admissible under  



                                                                                                                        

Rule 404(b)(4) if, after application of the factors set out in Bingaman v. State, the trial  



                                                                                                                           

court concluded that the probative value of the evidence outweighed the danger of undue  



                                                                                                                             

prejudice, confusion of the issues, or considerations of undue delay under Evidence Rule  

403.13  



                                                                                                                   

                    Even though the judge improperly applied Rule 404(b)(3), he nonetheless  



                                                              14  

                                                                                                                            

correctly conducted a Bingaman analysis.                          In undertaking a Bingaman analysis, a judge  



                                                                                                                        

must consider the particular circumstances of the charged case - for example, whether  



                                                                                                                      

the other-acts evidence is relevant to any material issue in the case and how seriously  



                                             15  

                                                                                                                   

disputed the material issue is.                 The judge in this case did that:  although he improperly  



                                                                                                                     

characterized Kasgnoc's defense as a "consent" defense for purposes of Rule 404(b)(3),  



                                                                                                                                

he  clearly  considered  this  defense  a  prerequisite  to  the  admission  of  evidence  of  



                                                         

Kasgnoc's prior conduct under Rule 403.  



                                                                                                            

                    The  court's  remaining  Bingaman  analysis  involved  a  straightforward  



                                                                                                                       

balancing of probative value versus undue prejudice.   Thus, had the court properly  



                                                                                                                               

recognized  the applicability  of Rule 404(b)(4),  there is no  reason  to  think  that the  



                                                                                                                               

Bingaman analysis would have been any different once Kasgnoc raised the defense that  



                                                                                                                               

the court considered critical to its Rule 403 analysis. That is, given the way this case was  



     12   See AS 18.66.990(3) & (5).  



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



     14   See  Cordell  v.  State,  2018   WL  6120201,  at  *3  (Alaska  App.  Nov.  21,  2018)  



(unpublished) (noting that the Bingaman factors apply to Evidence Rules 404(b)(2), (b)(3),   

and  (b)(4));  Rollins  v.  State,  2015  WL  4874789,  at  *3  (Alaska  App.   Aug.  12,  2015)  

(unpublished) (noting the same).  



     15   Bingaman, 76 P.3d at 415.  



                                                              -  9 -                                                         2648
  


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

litigated, the analysis conducted by the trial court under                                                                                                                   Bingaman  would have been the                                                             



same in all material respects under Rule 404(b)(4).                                                                             



                                          Kasgnoc   challenges   the   trial   court's   Bingaman   analysis,   arguing   that  



evidence of Kasgnoc's prior conduct involving V.K. was too dissimilar fromthe charged                                                                                                                                                                   



conduct, and that the prior-act evidence was more prejudicial than probative.                                                                                                                                                                       



                                          In conductingthe                                       Bingaman  analysis, thetrialcourt found                                                                                    that theevidence   



of the prior act was strong; Kasgnoc was convicted after a confession and a plea.  The   



trial court additionally found that the "situational behavior [was] remarkably the same,"                                                                                                                                                                  



and demonstrated Kasgnoc's "willingness to have sex with a family member."                                                                                                                                                                            Finally,  



the court found that the evidence was unlikely to lead the jury to decide the case on                                                                                                                                                                                   



improper grounds.                                            



                                          We conclude that the trial court did not abuse its discretion when it found                                                                                                                                         



that the probative value of the prior-act evidence outweighed its potential for confusing                                                                                                                                                        



                                                                                                                                                                                                        16  

                                                                                                                                                                                                                                                                  

the issues, misleading the jury, or engendering unfair prejudice.                                                                                                                                               We note that in both  



                                                                                                                                                                                                                                                                  

instances - the prior conduct involving V.K. and the charged conduct involving L.K.  



                                                                                                                                                                                                             17  

                                                                                                                                                                                    

- Kasgnoc alleged that his daughter initiated the sexual contact.                                                                                                                                                   



                                                                                                                                                                                                                                                

                                          Because  the  crimes  at  issue  in  this  case  qualify  as  "crimes  involving  



                                                                                                                                                                                                                                                                     

domestic  violence"  for  purposes  of  Evidence  Rule  404(b)(4),  and  because  we  are  



           16        See Howard v. State, 239 P.3d 426, 429 (Alaska App. 2010) (reviewing a trial judge's  



weighing of probative value versus the potential for unfair prejudice under the "abuse of  

                                                                                                                                                                 

discretion" standard - i.e., whether the ruling is clearly untenable or unreasonable).  



           17        Kasgnoc's claim that both V.K. and L.K. initiated sexual contact with him may have  

                                                                                                                                                                                                                                                                   

given  his  prior  conduct  with  V.K.  independent,  case-specific  relevance  under  Alaska  

Evidence Rule 404(b)(1).  But Rule 404(b)(1) does not provide an independent basis for our  

                                                                                

decision in this case because the prosecutor relied heavily on the evidence of Kasgnoc's prior  

                                                                                                                                                                                                                                 

conduct with V.K. for propensity purposes. See Berezyuk v. State, 407 P.3d 512, 516 (Alaska  

                                                                                                                                  

App. 2017) (noting that Evidence Rule 404(b)(1) "expressly prohibits character evidence"  

                                                                                                                                                                                        

(italics omitted)).  



                                                                                                                               -  10 -                                                                                                                             2648
  


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

convinced   that  the   evidence   was   admissible   under   that   rule,   we   affirm the                                                                                                                                                                                                           court's  



decision on this alternate ground.                                                             



                                                  That said, our decision should not be read to condone the scope of the                                                                                                                                                                                               



evidence and argument that the prosecutor presented as to Kasgnoc's prior conduct.                                                                                                                                                                                                                                       In  



our view, the prosecutor devoted an inordinate amount of time to the prior-act evidence,                                                                                                                                                                                                        



often focusing more on the prior conduct than on the charged conduct, and describing  



the prior conduct in unnecessarily inflammatory detail.                                                                                                                               



                                                  For the most part, Kasgnoc's attorney did not object to the scope of the                                                                                                                                                                                             



evidence or the nature of the prosecutor's argument.                                                                                                                                                And on appeal, Kasgnoc does not                                                                                    



raise this issue as a matter of plain error.                                                                                                               But we wish to remind prosecutors, defense                                                                                                 



attorneys, and trial judges that the question of the                                                                                                                                     admissibility  of prior-act evidence is                                                                                             



a question separate and distinct from the                                                                                                            nature and scope                                                  of that evidence, and the type                                                              



                                                                                                                                                 18  

and tenor of a prosecutor's arguments.                                                                                                                  



                                                                             

                        A note on the judgment  



                                                                                                                                                                                                                                                                                                                        

                                                  In our review of this case, we discovered that the written judgment in the  



                                                                                                                                                                                                                                                                                                                      

appellate record appears to inaccurately  reflect the sentence Kasgnoc received.   At  



                                                                                                                                                                                                                                                                                              

sentencing, the court imposed a composite sentence of 35 years to serve (with additional  



                                                                                                                                                                                                                                                   

suspended time), but the judgment shows that Kasgnoc received a composite sentence  



             18          Cf. Conley v. Alaska Commc'ns Sys. Holdings, Inc.                                                                                                                                        , 323 P.3d 1131, 1136, 1138-39  



(Alaska 2014) (recognizing that a court's pretrial decision to admit prior-act evidence does  

not  necessarily   mean  that  the  use  of   the  evidence  at  trial  is  unfettered,  but  where  the  

defendant failed to object to the improper use of the evidence at trial, the defendant could not                                                                                                                                

rely on the improper use of the evidence to argue that the trial court abused its discretion in     

its  pretrial  ruling);  see  also  State  v.   Washington,  693  N.W.2d  195,  204  (Minn.  2005)  

(recognizing that the court's task of weighing probative value against prejudicial effect does   

not  end  with  the  preliminary   decision  to  admit  some  prior-act  evidence,  but  that  the  

defendant bears the burden of challenging the scope of such evidence).  



                                                                                                                                                       -  11 -                                                                                                                                                     2648
  


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

of 45 years to serve.                                                      Neither party has flagged this issue in their briefs.                                                                                                                                If Kasgnoc   



believes that there is an error in the judgment and this error has not yet been addressed,                                                                                                                                                                          

Kasgnoc may file a motion to correct the judgment in the superior court.                                                                                                                                                                                 19  



                       Conclusion  



                                              We AFFIRM the judgment of the superior court.  

                                                                                                                                                                                                 



            19         See Graybill v. State, 822 P.2d 1386, 1388 (Alaska App. 1991) ("Where . . . a conflict   



exists between an orally imposed sentence and a subsequently issued written judgment, it is                                                                                                                 

well settled that the oral pronouncement of sentence must govern.").  



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