Made available by Touch N' Go Systems, Inc. and
This was Gottstein but needs to change to what?
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 274-9493

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.

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


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

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

           errors to the attention of the Clerk of the Appellate Courts:  

                                          303 K Street, Anchorage, Alaska  99501

                                                        Fax:  (907) 264-0878

                                              E-mail:  corrections @



                                                                                    Court of Appeals No. A-12091  

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


                                                                                                  O P I N I O N  


                                            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,  



                      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                                                                                                                                                      


                    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  



                    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                                                                                                                                                                         


 purposes of Rule 404(b)(4),                                                                                                                                                                                                                              

                                                                                           but the court nonetheless decided to rely solely on Rule  




                                         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  




 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      


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           


a "consent" defense.                     


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


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



                         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  




                        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  



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).   



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



            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  


                                                                         -  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  


                                       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  



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  



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,                                          


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  



                                                                                          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-  


      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  


                                                                     -  8 -                                                               2648

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


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  



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



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  



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                                                                                                                                                        



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.  



- 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                                                              


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  


                                              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.").  

                                                                                                                                           -  12 -                                                                                                                                        2648

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights