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.


Korakanh Phornsavanh v State of Alaska (2/5/2021) ap-2691

Korakanh Phornsavanh v State of Alaska (2/5/2021) ap-2691

                                                     NOTICE
  

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

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

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



                                  303 K Street, Anchorage, Alaska  99501
  

                                              Fax:  (907) 264-0878
  

                                      E-mail:  corrections @ akcourts.us
  



                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



KORAKANH PHORNSAVANH,  

                                                                    Court of Appeals No. A-12499  

                                    Appellant,                   Trial Court No. 3AN-13-06468 CR  



                           v.  

                                                                               O P I N I O N  

STATE OF ALASKA,  



                                    Appellee.                       No.  2691 - February 5, 2021  

                                                                                                    



                  Appeal  from  the  Superior   Court,  Third  Judicial  District,  

                                                         

                  Anchorage, Michael L. Wolverton, Judge.  



                  Appearances:  Kelly R. Taylor, Assistant Public Defender, and  

                                              

                  Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                                                                                       

                  Timothy  W.  Terrell,  Assistant  Attorney  General,  Office  of  

                                                                                       

                  Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney  

                  General, Juneau, for the Appellee.  



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

                                                 

                                                        *  

                  Senior Superior Court Judge.   



                  Judge ALLARD.  



     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  



Constitution and Administrative Rule 23(a).  


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

                                   Korakanh Phornsavanh                                          wasconvicted,followingajurytrial,                                                           offirst-degree   



 murder for fatally shooting Said Beshirov during a street brawl outside an Anchorage                                                                                                                



 nightclub.   He now appeals that conviction, raising three claims of error.                                                                                                    



                                   Phornsavanh's first claim is that the superior court erred when it failed to                                                                                                              



provide a defense-requested instruction on eyewitness identification.                                                                                                                   For the reasons       



 explained in this opinion, we reject this claim.                                                                           



                                   Phornsavanh's two other claims relate to various evidentiary weaknesses                                                                                         



 in the State's case against him.                                                  Citing eyewitness testimony that pointed to a different                                                                



 man as the shooter, Phornsavanh argues that the evidence presented at trial was legally                                                                                                                        



                                                                                                   1 

 insufficient to support his conviction.                                                                                                                                                                                  

                                                                                                       In the alternative, Phornsavanh argues that the  



                                                                                                                                                                                                                             

jury's verdict was against the weight of the evidence and that the superior court erred in  



                                                                                                                                                                              2  

                                                                                                                                                                                                                       

                                                                                                                                                                                   Phornsavanh also  

 failing to grant his motion for a new trial in the interest of justice. 



                                                                                                                                                                                                        

 argues that the superior court failed to apply the correct legal standard when it evaluated  



                                                                                                                                                                      

 his motion for a new trial based on the weight of the evidence.  



                                                                                                                                                                                                                              

                                   For the reasons explained in this opinion, we conclude that the evidence at  



                                                                                                                                                                                                                       

 trial waslegally sufficient tosupportPhornsavanh's conviction. However, weagreewith  



                                                                                                                                                                                                                              

 Phornsavanh that the superior court failed to apply the correct legal standard when it  



                                                                                                      

 evaluated Phornsavanh's motion for a new trial.  Accordingly, we remand this case to  



                                                                                                                                                                                                                          

 the superior court for reconsideration of Phornsavanh's motion for a new trial under the  



                                                            

 correct legal standard.  



          1       See Alaska R. Crim. P. 29; see also Jackson v. Virginia, 443 U.S. 307, 317 (1979).   



         2        See Alaska R. Crim. P. 33(a).  



                                                                                                           - 2 -                                                                                                       2691
  


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

          Background facts and prior proceedings  

                                                      



                    On October 28, 2012, PlatinumJaxx, a nightclub in downtown Anchorage,  

                                                                                                                   



hosted a Halloween party.   Around 2:30 a.m., the nightclub closed and ushered its  

                                                                                                                                



patrons out onto the street.   Many of the patrons were in costume; many were also  

                                                                                                                              



intoxicated.  

                    



                    Among the patrons leaving the club was twenty-five-year-old Korakanh  

                                                                                                                     



Phornsavanh. Phornsavanh was wearing a red hooded sweatshirt, a red baseball cap, and  

                                                                                                                               



black and white face paint.  Phornsavanh is 5 feet 6 inches tall.  

                                                                                                 



                    Alsoamong thepatrons was agroup offour friends: AnthonyXayavongsy,  

                                                                                                                 



his  brother  Blandy,  and  their  friends  Victor  Senethep  and  Dellon  Vongphrachanh.  

                                                                                                                                     



Xayavongsy and Vongphrachanh were both dressed as cowboys, with matching long- 

                                                                                      



sleeved white shirts, black vests, and cowboy hats.  Xayavongsy, who is 5 feet 9 inches  

                                                                                                                           



tall,  wore  a  red  bandanna;  Vongphrachanh,  who  is  6  feet  1  inch  tall,  wore  a  blue  

                                                                                                                             



bandanna. Xayavongsy's brother Blandy wore a Nixon mask; Senethep wore a Reagan  

                                                                                                                         



mask.  

           



                    The  victim  in  this  case,  Said  Beshirov,  also  departed  from  the  club.  

                                                                                                                                     



Beshirov, who was 5 feet 9 inches tall, was not wearing a costume.  Instead, he was  

                                                                                                                              



wearing a lightweight red puffer jacket.  

                                                              



                    As the patrons congregated outside the nightclub, a street brawl broke out.  

                                                                                                                                     



The brawl eventually fractured into two fights, which two patrons filmed with their cell  

                                                                                                                               



phones.  The beginning of the brawl was also captured on the nightclub's surveillance  

                                          



video.  

            



                    Thecell phone and surveillance videos showan incompleteversion ofwhat  

                                                                                                                             



happened.   In the surveillance video, Phornsavanh can be seen shoving a man in a  

                                                                                                                                  



construction vest.  Soon afterwards, Blandy can be seen on the same video, throwing a  

                                                                                                                                   



woman in a yellow dress to the ground. The first cell phone video starts with the woman  

                                                                                                                         



                                                              -  3 -                                                         2691
  


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

in the yellow dress on the ground and shows Xayavongsy punching another woman in  

                                                                                                                                 



a black costume in the face; she also falls to the ground.  The first cell phone video also  

                                                                                                                              



shows Vongphrachanh and Senethep punching and then kicking a man in a superhero  

                                                                                                                     



costume.  Phornsavanh can be seen punching a man in a plaid shirt in the head from  

                                                                                                                             



behind and then trading blows with Beshirov after Beshirov intervenes in the fight. The  

                                                                                                                               



fight fractures into two groups at this point, and the second cell phone starts recording,  

                                                                                                                     



showing Phornsavanh scuffling with the man in the plaid shirt and then exchanging  

                                                                                                                  



punches with Beshirov.   The second cell phone video then pans to the left to focus  

                                                                                                                            



briefly on the other fight.  

                               



                    Shortly thereafter, the second cell phone video pans back to the right.  On  

                                                                                                                                



the video, Beshirov can be seen facing Xayavongsy and Senethep, who are standing on  

                                                                                                                                 



the sidewalk.  Xayavongsy, who is holding a cowboy hat in his right hand, is gesturing  

                                                                                                                      



with that arm pointed straight at Beshirov. Beshirov is walking toward Xayavongsy and  

                                                                                                                               



holding both hands in the air in a placating manner.  

                                                                   



                    On the left side of the frame in the second video, Phornsavanh can be seen  

                                                                                                                              



moving quickly toward Xayavongsy, with his upper body angled toward Beshirov.  

                                                                                                                                     



Phornsavanh's right arm is close to his side.  The still-frame exhibits of the video show  

                                                                                                                            



a black shadow or spot on Phornsavanh's right hand that the prosecutor argued was a  

                                                                                                                                  



gun.   Xayavongsy can be seen lowering his right arm, then quickly re-raising it and  

                                                                                                                              



turning to look at Phornsavanh as Phornsavanh gets closer. Just as Xayavongsy re-raises  

                                                                                                                        



his right arm again toward Beshirov, the video pans away.  It is not clear from the video  

                                                                                                                            



whether Xayavongsy is still holding his cowboy hat in his right hand or if he is holding  

                                                                                                                         



something else.  

                  



                    Less than a second after the video pans away, two gun shots can be heard.  

                                                                                                                                     



Neither cell phone video captures the actual shooting.  Following the shots, the second  

                                                                                                                          



video pans back to show Beshirov lying on the street, bleeding from multiple wounds.  

                                                                                                                                     



                                                              - 4 -                                                          2691
  


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

                    Beshirov died at the scene.  A medical examination would later determine  

                                                                                                                     



that one of the bullets went through Beshirov's hand and entered his head, while the  

                                                                                                                               



other bullet hit him in the upper chest.  A ballistics expert would later testify that the  

                                                                                                                               



bullets came from a .380 caliber gun, which is small enough to rest in the palm of a  

                                                                                                                                  



man's hand.  

           



                    Immediately after the shots were fired, Xayavongsy, Blandy, Senethep and  

                                                                                                                               



Vongphrachanh  left  the  scene,  driving  the  wrong  way  down  a  one-way  street  and  

                                                                                                                              



discarding parts of their costumes along the way.  Phornsavanh also left the scene in a  



different car.  

                      



                    The police interviewed multiple eyewitnesses to the shooting.   Most of  

                                                                                                                                 



these eyewitnesses were intoxicated.  

                                                          



                    Theeyewitnesses wereinconsistentin their descriptions of theshooter. For  

                                                                                                                                



example, most oftheeyewitnesses identifiedtheshooter as Asian,but other eyewitnesses  

                                                                                                                 



identified him as Samoan, Alaska Native, or Black.  (Xayavongsy and Phornsavanh are  

                                                                                                                                



both Asian, although Phornsavanh's facial features were somewhat obscured by the  

                                                                                                                               



black and white face paint.)  Some eyewitnesses described the shooter as having short  

                                                                                                                 



black hair. (Both Xayavongsy and Phornsavanh have short dark or black hair, although  

                                                                                                                       



Phornsavanh's hair was obscured by his baseball cap.) Some eyewitnesses described the  

                                                                                                                                



shooter as having a long, dark ponytail.  (Vongphrachanh has a long, dark ponytail.)  

                                                                                                                   



                    The  eyewitnesses  were  also  inconsistent  about  what  the  shooter  was  

                                                                                                                             



wearing.  Many of the eyewitnesses described the shooter as wearing a long-sleeved  

                                                                                                                 



white shirt with a black vest.  (As part of their cowboy costumes, both Xayavongsy and  

                                                                                                                               



Vongphrachanh  were  wearing  long-sleeved  white  shirts  and  black  vests.)                                              Two  

                                                                                                                            



eyewitnesses described the shooter as wearing "dark clothing" without referring to any  

                                                                                                                               



white shirts.  The shooter was also described as wearing a gray zip-up hoodie, a white  

                                                                                                  



                                                              -  5 -                                                         2691
  


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

tank top and jeans, or a dark brown sweater.  At the time of the shooting, none of the  

                                                                                                                                



eyewitnesses described the shooter as wearing red.  

                                                                                



                    The eyewitnesses were inconsistent about the height and weight of the  

                                                                                                                                



shooter.  Several of the eyewitnesses described the shooter as similar height and build  

                                                                          



as the victim, who was 5 feet 9 inches tall with a medium build.  (Xayavongsy is 5 feet  

                                                                                                                                



9 inches tall with a medium build.)  However, three eyewitnesses described the shooter  

                                                                                                                          



as at least 6 feet tall and 200 pounds.  (Vongphrachanh is 6 feet 1 inch tall and 225  

                                                                                                                        



pounds.)  And one eyewitness described the shooter as 5 feet 6 inches or 5 feet 7 inches  

                                                                                                                            



tall.  (Phornsavanh is 5 feet 6 inches tall.)  

                                                          



                    One  eyewitness  told  the  police  that  Vongphrachanh  was  the  shooter.  

                                                                                                                                      



However, she later testified at trial that she could not remember the shooting and was  

                                                                                                                               



guessing when she initially named Vongphrachanh.  

                                                                                   



                    The  police  were  later  able  to  exclude  Vongphrachanh  and  Blandy  

                                                                                                                         



(Xayavongsy's brother) as suspects based on the first cell phone video, which showed  

                                                                                                                         



Vongphrachanh and Blandy engaged in a separate fight when the shots were fired.  

                                                                                                                                 



                    Based on the eyewitness descriptions and an initial review of the cell phone  

                                                                                                                            



videos, the police initially focused their attention on Xayavongsy as their prime suspect.  

                                                                                                                                      



Xayavongsy fit several of the descriptions, and the second cell phone video showed  

                                                                                                                         



Xayavongsy  in  an  apparent  verbal  altercation  with  the  victim  seconds  before  the  

                                                                                                                                



shooting.  The police did not initially consider Phornsavanh a suspect because none of  

                                                                                                                                  



the eyewitnesses had described the shooter as wearing red clothes, a red baseball cap, or  

                                                                                                                                  



black and white face paint.  

                                            



                    As  part  of  their  investigation,  the  police  interviewed  Phornsavanh.  

                                                                                                                                      



Phornsavanh was evasiveduringthis interview, and heinitially lied about being involved  

                                                                                                                        



in the street brawl.   However, after being confronted with the video evidence of his  

                                                                                                                                



involvement in the brawl, Phornsavanh admitted to being at the scene, although he  

                                                                                                                                 



                                                               -  6 -                                                         2691
  


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

denied shooting Beshirov or knowing who did. Phornsavanh acknowledged that he was  

                                                                                                                               



only feet away from Beshirov when he was shot, but he maintained that he did not know  

                                                                                                                             



who shot Beshirov because he was looking at Beshirov at the time of the shooting.  

                                                                                                                 



                    The police also interviewed Xayavongsy. Xayavongsy, like Phornsavanh,  

                                                                                                                 



denied shooting Beshirov or knowing who did.  

                                                                          



                    At trial, the State was unable to locate Senethep, Xayavongsy's friend who  

                                                                                                                               



was standing next to Xayavongsy at the time of the shooting.  In the video, Senethep,  

                                                                                                                      



who was wearing a Reagan mask, can be seen looking at Xayavongsy and Phornsavanh  

                                                                                                                 



and then shifting his weight to one foot as if to run in the seconds before the shooting.  

                                                                                                                                      



                    The State was also unable to locate Vongphrachanh, who left the scene in  

                                                                                                                                  



a vehicle with Xayavongsy, Blandy, and Senethep.  Blandy testified at trial and denied  

                                                                                                                           



knowing who the shooter was.  

                                                 



                    At  some  point,  the  police  shifted  their  attention  from  Xayavongsy  to  

                                                                                                                                 



Phornsavanh as the main suspect. Phornsavanh was later arrested and charged with first- 

                                                                                                                              



and second-degree murder.  

                                             



                    At  the  initial  grand  jury,  the  State  failed  to  introduce  the  eyewitness  

                                                                                                                   



testimony, which tended to exculpate Phornsavanh, and the superior court dismissed the  

                                                                                                                                 



indictment for failure to present exculpatory evidence.  Phornsavanh was subsequently  

                                                                                                                 



re-indicted on the same charges, and the case went to a jury trial.  

                                                                                             



          The evidence at trial  

                                            



                    At trial, the State's case primarily consisted of the two cell phone videos,  

                                                                                                                          



and three expert witnesses.  

                           



                                                               -  7 -                                                         2691
  


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

                     The cell phone videos  

                                             



                     The State's case against Phornsavanh relied chiefly on the second cell  

                                                                                                                               



phonevideo, which showed theverbal encounter between Xayavongsy and Beshirov and  

                                                                                                                                



the movements of Xayavongsy and Phornsavanh in the seconds before the shooting. The  

                                                                                                                                



jury was provided with a playback device enabling the jury to watch the video in slow- 

                                                                                                                             



motion  or  frame-by-frame.                    The  jury  was  also  given  numbered  print-outs  of  the  

                                                                                                                                



individual frames.  

                               



                     The prosecutor argued that the video showed Phornsavanh carrying a gun  

                                                                                                                                



and moving with deliberation to the position where he shot Beshirov.  Specifically, the  

                                                                                                                                



prosecutor argued that (1) a black mark that appears in Phornsavanh's hand in some of  

                                                                                                                                  



the frames was the gun; (2) Phornsavanh's abnormal stride showed that he was carrying  

                                                                                                                         



a gun; (3) Senethep and Xayavongsy were looking at Phornsavanh and stepping back,  

                                                                                



which  was  consistent  with  Phornsavanh  carrying  a  gun;  and  (4)  Phornsavanh  was  

                                                                                                                               



looking  at  Beshirov  and  angling  his  body  toward  him,  which  showed  that  he  was  

                                                                                                                               



targeting Beshirov.  The prosecutor also argued that Phornsavanh had a motive to shoot  

                                                                                                                             



Beshirov because Beshirov had just bested him in a fist fight captured on the cell phone  

                                                                                                                            



videos.  



                     Unlike the prosecutor, the defense attorney emphasized the eyewitness  

                                                                                                                    



testimony at the scene,  none of which inculpated Phornsavanh and some of which  

                                                                                                                           



inculpated   Xayavongsy.                    The   defense   attorney   also   disputed   the  prosecutor's  

                                                                                                                 



interpretation of the second cell phone video. For example, the defense attorney argued  

                                                                                                                           



that the black shadow identified by the prosecutor as a gun in Phornsavanh's hand was  

                                                                                                                               



actually the result of lighting and video quality, and the defense attorney pointed to other  

                                                                                                                             



individuals in the video who appeared to have similar black spots on their hands.  

                                                                                                                              



                     The defense attorney argued that the second cell phone video actually  

                                                                                                                                      



showed that Xayavongsy was the shooter - a version of events that he pointed out was  

                                                                                                                               



                                                               -  8 -                                                         2691
  


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

more consistent with the eyewitness testimony. The defense attorney focused the jury's  

                                                                                                                            



attention on the last clear frame in the video before the camera panned away and the  

                                                                                                                                



shooting occurred.  This frame shows Xayavongsy facing Beshirov with his right arm  

                                                                                                                               



raised in a shooting position. Xayavongsy has something indiscernible in his right hand,  

                                                                                                                             



which the prosecutor argued was the cowboy hat but the defense attorney argued was a  

                                                                                                                                    



gun.  According to the defense attorney, Xayavongsy had shifted his hat to his left hand  

                                                                                                                              



so that he could pull out a gun, and the defense attorney pointed to a place in the video  

                                                                                                                             



where Xayavongsy lowers his arm and Phornsavanh's body obscures Xayavongsy's  

                                                                                                               



body as the moment when Xayavongsy switched his hat to his left hand and then took  

                                                                                                                       



out his gun with his right hand.  The defense attorney further argued that the outline of  

                                                                                                                                  



Xayavongsy's hat could be seen in his left hand in the last frame of the video before it  

                                                                                                                                   



panned away.  

                       



                     The State's eyewitness identification expert  

                                                                                          



                    At trial, the State introduced testimony from the various eyewitnesses,  

                                                                                                                



mainly to discredit that testimony.   As already mentioned, prior to trial, none of the  

                                                                                                                                



eyewitnesses  identified  the  shooter  as  wearing  red.                             Instead,  various  eyewitnesses  

                                                                                                                



reported that the shooter was of the same height and build as Xayavongsy and wearing  

                                                                                                                         



clothes that were similar to the clothes worn by Xayavongsy.  

                                                                                                



                    In discrediting the reliability of the eyewitness descriptions, the prosecutor  

                                                                                                                     



relied  heavily  on  the  testimony  of  Dr.  Geoffrey  Loftus,  an  expert  in  memory  and  

                                                                                                                               



eyewitness identification who typically testifies in favor of the defense in criminal trials.  

                                                                                                                                      



Dr. Loftus described several factors that can affect the formation of memory, including  

                                                                                                                       



duration  of  the  event,  attention,  lighting  conditions,  alcohol,  stress,  and  post-event  

                                                                                                                    



circumstances.  According to Dr. Loftus, the longer the duration of an event, the better  

                                                                                                                            



the witness's memory of the event because the witness has more time to consciously  

                                                                                                                   



                                                               -  9 -                                                         2691
  


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

observe details.  Dr. Loftus also explained that stress can be an especially distorting  

                                                                                                                      



influence on memory, because stress inhibits the formation of memory and can also  

                                                                                                                               



engender a falsely vivid memory as a witness revisits the stressful incident in their head  

                                                                                                                              



or with others.  

                          



                     According to Dr. Loftus, many of the factors that adversely affect memory  

                                                                                                                         



were present in this case.  The shooting here was unexpected, shocking, and extremely  

                                                                                                                      



short in duration. And while the parties disagreed as to the quality of lighting conditions,  

                                                                                                                     



it  was  undisputed  that  it  was  nighttime  and  that  the  only  illumination  came  from  

                                                                                                                             



streetlights,  nearby  businesses,  and  cars.                      It  was  also  undisputed  that  many  of  the  

                                                                                                                                



eyewitnesses were intoxicated.  

                               



                     Dr. Loftus also provided testimony  that  was helpful to Phornsavanh's  

                                                                                                              



defense.  Dr. Loftus testified that, as a general matter, a witness's first reporting is the  

                                                                                                                                



most  accurate.             According  to  Dr.  Loftus,  if  multiple  witnesses  provide  similar  

                                                                                                                         



independent accounts, these accounts are more likely to be accurate than independent  

                                                                                                                  



dissimilar accounts.  Relying on this expert testimony, the defense attorney focused the  

                                                                                                                                 



jury's attention on the commonalities in the eyewitness descriptions, and the fact that so  

                                                                                                                                  



many eyewitnesses identified the shooter as Asian, 5 feet 9 inches tall with a medium  

                                                                                                                         



build, and wearing dark clothing, including a white shirt with a black vest - descriptors  

                                                                                                                     



that pointed to Xayavongsy as the shooter, not Phornsavanh.  

                                                                                                



                     The defense attorney also relied on Dr. Loftus's testimony regarding how  

                                                                                                                               



post-event information can contaminate an eyewitness's memory. This expert testimony  

                                                                                                                      



was helpful to the defense because one of the eyewitnesses - Daniil Bogdanov -  

                                                                                                                                 



radically altered his description of the shooter at trial.  In his statement to the police and  

                                                                                                                                



in his testimony to the grand jury, Bogdanov described the shooter as wearing blue jeans  

                                                                                                                              



and a basic shirt with a black body and white sleeves.  Bogdanov's description of the  

                                                                                                                                



shooter was consistent with many of the other eyewitnesses' descriptions and was also  

                                                                                                                               



                                                              -  10 -                                                         2691
  


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

consistent with Xayavongsy being the shooter; it was inconsistent with the State's theory  

                                                                                                                            



because Phornsavanh was wearing a red hooded sweatshirt and red baseball cap.  

                                                                                                                             



                    At  trial,  however,  Bogdanov  changed  his  description  of  the  shooter.  

                                                                                                                                      



Bogdanov testified that he changed his description based on an online newspaper article  

                                                                                                                            



that he read a few days before he testified. The article reported on the defense attorney's  

                                                                                                                      



opening  statement,  and  it  emphasized  that  none  of  the  eyewitnesses  had  identified  

                                                                                                               



Phornsavanh as the shooter.  The article also included a link to the second cell phone  

                                                                                                                            



video. Bogdanov testified that he watched the video, and the video triggered "repressed  

                                                                                                                     



memories" of the event, causing him to now "remember" that the shooter was wearing  

                                                                                                                         



a red jacket or hooded sweatshirt with a red baseball cap.   Bogdanov was the only  

                                                                                                                              



eyewitness who testified that the shooter wore red.  

                                                                                 



                    Relying on Dr. Loftus's expert testimony, Phornsavanh's defense attorney  

                                                                                                                         



attacked Bogdanov's "repressed memory," and argued that it was unreliable and tainted  

                                                                                                                           



by the news story and the cell phone video.  

                                                                     



                     Significantly, the prosecutor did relatively little to rehabilitate Bogdanov's  

                                                                                                                   



credibility.        Instead,  the  prosecutor  argued  that  most,  if  not  all,  of  the  eyewitness  

                                                                                                                    



testimony was unreliable and that all of the eyewitnesses were generally mistaken about  

                                                                                                                             



what they saw or what they thought they saw.  

                                                                         



                     The State's other expert witnesses  

                                                                          



                    In addition to Dr. Loftus, the State presented two other expert witnesses -  

                                                                                                                                  



Dr. Gary Zientek, the medical examiner, and Robert Shem, a firearms expert.   The  

                                                                                                                              



prosecutor relied on these experts primarily to establish that the pool of suspects was  

                                                                                                                               



limited to Xayavongsy and Phornsavanh.  

                                                                 



                                                              -  11 -                                                         2691
  


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

                    Dr. Zientek, the medical examiner, testified that the trajectory of the bullets  

                                                                                                                           



was from left to right - i.e., the shooter was standing to the left of Beshirov.  (Both  

                                                                                                                            



Phornsavanh and Xayavongsy appear to be to the left of Beshirov on the video.)  

                                                                                                                              



Dr. Zientek could not determine how far away the shooter was, other than to note that  

       



the shooter was likely more than two or three feet away because there was no residue  

                                                                                                                          



around the entrance wounds.  

                                              



                    Robert Shem, the firearms expert, testified that the shots came from a .380  

                                                                                                                               



caliber handgun.  The gun was likely small enough to fit in the palm of a man's hand  

                                                                                                                             



without being seen and could easily be concealed in a waistband.  Shem testified that he  

                                                                                                                                  



could not tell where the shooter was standing based on where the bullet cartridges were  

                                                                                                                              



found at the scene because cartridges tend to bounce and roll on concrete and could have  

                                                                                                                              



been kicked if there were a lot of people in the area (as there were here).  Additionally,  

                                                                                                                 



if the gun were held sideways (which one eyewitness reported), that could affect the  

                                                                                                                                



cartridge ejection patterns.  

                                           



                    Xayavongsy's trial testimony  

                                                   



                    The State called Anthony Xayavongsy as a witness. Xayavongsy testified  

                                                                                                                         



that he was not the shooter, that he did not see the shooting, and that he did not know  

                                                                                                                            



who shot the victim. Xayavongsy testified that the fight started soon after he left the club  

                                                                                                                               



with his friends.  He admitted that he punched a woman in the face because she got "in  

                                                                                                                                 



[his] face." According to Xayavongsy, he was in the middle of the street brawl when all  

                                                                                                                                  



of a sudden he heard gunshots. He did not know where the gunshots were coming from,  

                                                                                                                             



so he turned around and ran.  

                                       



                    But after being confronted with the second cell phone video, Xayavongsy  

                                                                                                                  



admitted  that  he  was  the  man  standing  on  the  sidewalk  across  from  the  victim.  

                                                                                                                                      



Xayavongsy identified the object in his hand as a cowboy hat, and he maintained that he  

                                                                                                                                  



                                                              -  12 -                                                         2691
  


----------------------- Page 13-----------------------

did not have a gun on him the night of the shooting.  However, he testified that he did  

                                          



not remember being on that sidewalk or having his arm outstretched.  Xayavongsy also  

                                                                                                                              



testified that he did not recognize the man in the video in the red cap (Phornsavanh) or  

                                                                                                                                 



the victim.  He claimed to know nothing of the shooting, notwithstanding his proximity  

                                                                                                                     



to the event.  

           



                    Xayavongsy  testified  that  he  "probably"  knew  Phornsavanh  from  the  

                                                                                                                               



Anchorage  night  life,  but  he  claimed  that  he  could  not  recall  how  often  he  saw  

                                                                                                                             



Phornsavanh around.  When the prosecutor drew his attention to a video showing him  

                                                                                                



walking out of PlatinumJaxx with Senethep and Phornsavanh, Xayavongsy testified that  

                                                                                                                               



he did not remember leaving together and could not recall if he saw Phornsavanh that  

                                                                                                                              



night  in  the  club.          At  other  points  in  his  testimony,  Xayavongsy  denied  knowing  

                                                                                                                      



Phornsavanh "at all."   Yet he later admitted that he had once been pulled over with  

                                                                                                                             



Phornsavanh in his car and that they knew each other through a mutual friend.  

                                                                                                              



                    Phornsavanh's police interview  

                                                        



                    Phornsavanh did not testify at trial.  However, the prosecutor played the  

                                                                                                                                



police interview in which Phornsavanh was initially evasive about his presence at the  

                                                                                                                               



scene, and the prosecutor argued that the interview demonstrated consciousness of guilt.  

                                                                                                                                     



          The pre-verdict motion for judgment of acquittal  

                                                                        



                    At the close of the State's case, the defense moved for a judgment of  

                                                                                                                                



acquittal  under  Alaska  Criminal  Rule  29,  arguing  that  the  State  had  not  presented  

                                                                                                                     



sufficient evidence to allow a reasonable juror to find Phornsavanh guilty beyond a  

                                                                                                                                  



reasonable doubt.  The court took this motion under advisement.  When the defense  

                                                                                                                        



                                                             -  13 -                                                         2691
  


----------------------- Page 14-----------------------

rested, it renewed its motion for a judgment of acquittal.                                            The court again reserved       

judgment until after the verdict.                    3  



                                                                                                           

            The jury's verdict and the post-verdict motion for a new trial  



                                                                                                                                          

                       The jury deliberated for two-and-a-half days, during which time the jury  



                                                                                                                                        

requested and received additional specialized equipment to magnify the cell phone video  



                                                                                                                           

and the still frames captured from the video. The jury subsequently found Phornsavanh  



                                                                     

guilty of first-degree and second-degree murder.  



                                                                                                                                            

                      After the jury reached its verdict, the defense reminded the court of the  



                                                                                                                                         

outstanding motion for judgment of acquittal. The defense also filed a motion for a new  



                                                                                                                                       

trial in the interest of justice under Alaska Criminal Rule 33, arguing that the jury's  



                                                                      

verdict was contrary to the weight of the evidence.  



                                                                                                                                        

                       The parties provided substantive briefing on both motions, and the court  



                                                                                                                                         

heard oral argument on the motions. After considering the arguments, the superior court  



                                                                                                                                           

denied both the motion for judgment of acquittal and the motion for a new trial in a six- 



                                  

page written order.  



                                                                                                                                            

                      At sentencing, the court merged the second-degree murder count into the  



                                                    

first-degree murder count and sentenced Phornsavanh to 65 years' imprisonment with  



                                                                    

20 years suspended (45 years to serve).  



                                                             

                       This appeal followed.  



                                                                                    

           Phornsavanh's eyewitness jury instruction claims  



                                                                                                                              

                      As  previously  mentioned,  one  of  the  eyewitnesses,  Daniil  Bogdanov,  



                                                                                                                                            

changed his description of the shooter at trial. Prior to trial, Bogdanov had described the  



      3    See Alaska R. Crim. P. 29(b).  



                                                                   -  14 -                                                               2691
  


----------------------- Page 15-----------------------

shooter as Samoan, the same height and weight as Beshirov, wearing dark blue jeans and  

                                                                                                                                



a long sleeved shirt with white sleeves and a black body. This description suggested that  

                                                                                                                                



Xayavongsy was the shooter.   At trial, however, Bogdanov described the shooter as  

                                                                                                                                  



wearing a red hooded sweatshirt and red baseball cap.  This description suggested that  

                                                                                                                               



Phornsavanh was the shooter.  Bogdanov claimed that viewing the cell phone video a  

                                                                                                                                   



few days before he testified helped him to remember what he actually saw.  Bogdanov  

                                                                                                                     



was the only witness who identified the shooter as wearing red.  

                                                                                                    



                     After  Bogdanov  testified,  one  of  the  jurors  approached  the  judge  in  

                                                                                                                                 



chambers and asked, in the presence of the judge's law clerk and assistant, if witnesses  

                                                                                                                       



were subject to the same requirements as jurors - that is, whether witnesses were  

                                                                                                                             



prohibited from discussing the case or doing any independent investigation or research.  

                                                                                                                                      



Later, when the court asked the juror to relay the question to the parties on record, the  

                                                                                                                                



juror stated he was concerned that "at least one witness . . . had actually gone out and  

                                                                                                                         



seen a video, and it ha[d] colored his opinion."  The juror expressed his skepticism of  

                                                                                                                                  



Bogdanov's changed description, and he asked the court whether the jury should accept  

                                                                                                                            



his statements.  

                         



                     After requesting that the juror not voice these concerns to the other jurors  

                                                                                                                            



at this stage, the court conferred with the parties regarding how to respond to the juror's  

                                                                                                                           



question.  The defense attorney proposed an instruction that directed the jury to  

                                                                                                                            



Dr. Loftus's expert testimony:  

                                                



                     You  have  heard  that  an  eyewitness  in  this  case,  Daniil  

                                                                                                      

                     Bogdanov, reviewed a cell phone video and media report of  

                                                                                                              

                     opening statements in this trial prior to testifying. While that  

                                                                                                           

                     conduct did not violate the law, it is something you should  

                                                                                                      

                     consider  in  evaluating  the  credibility  of  Mr.  Bogdanov's  

                                                                                              

                     current stated memory of the events of this case.  You may  

                                                                                                          

                     also consider the trial testimony of the State's own expert  

                                                                                                       

                     witness,  Dr.  Geoffrey  Loftus,  as well as evidence  of  Mr.  

                                                                                                           



                                                              -  15 -                                                         2691
  


----------------------- Page 16-----------------------

                                                                 Bogdanov's previous stated memories and any other relevant                                                                                                                                                                                              

                                                                 factors   in   evaluating   the   credibility   of   Mr.   Bogdanov's  

                                                                 current stated memory.                                                                                           



                                                                 The prosecutor objected to the defense's proposed instruction, and instead                                                                                                                                                                                                                                                                                      



 offered a more generic instruction that directed the jury to the general witness credibility                                                                                                                                                                                                                                                                                



 instruction.   The superior court adopted the State's proposed instruction with one small                                                                                                                                                                                                                                                                                                           



 change, and the jury was subsequently instructed as follows:                                                                                                                                                                                              



                                                                 At the beginning of trial, the court gave you an instruction                                                                                                                                                                             

                                                                 regarding the conduct of jurors to guide you as jurors during                                                                                                                                                                                                 

                                                                 the    course    of    the    trial.     The    instruction    included    an  

                                                                 admonition                                                      not                     to                 view                            any                        outside                                    media                                  material  

                                                                 concerning the trial.                                                                                 Certain witnesses have testified that                                                                                                                               

                                                                 they   saw   media   accounts   of   the   trial   prior   to   testifying.   

                                                                 Witnesses in a trial are not given the same admonition by the                                                                                                                                                                                                                  

                                                                 court as jurors, and there is no instruction or requirement that                                                                                                                                                                                                            

                                                                 they  refrain   from   viewing   media   related   to   the   case.    A  

                                                                 witness who has viewed any media coverage of the trial has                                                                                                                                                                                                                   

                                                                 not violated any court order or law.                                                                                                                                     But you are to judge the                                                                              

                                                                 credibility   of   all   witnesses   using   the   factors   outlined   in  

                                                                 instruction number 5.                                                                                    



 In adopting the State's proposed instruction, the court made clear that the defense was                                                                                                                                                                                                                                     



  still entitled to argue the points contained in the defense's proposed instruction to the                                                                                                                                                                                                                                                                                                                    



jury.  And, indeed, the defense attorney argued these points during closing argument.                                                                                                                                                                                                                                                                                                                                          



                                                                 On appeal, Phornsavanh argues that it was reversible error for the superior                                                                                                                                                                                                                                           



 court   to   give   the   State's   proposed   instruction   instead  of   the   defense's   proposed  



 instruction. But, as a general matter, as long as the jury is properly instructed on the law,                                                                                                                                                                                                                                                                                                            



 a trial court "has broad discretion to determine whether to give instructions specially                                                                                                                                                                                                                                                                                          



                                                                                                                                      4  

 tailored to the case at hand."                                                                                                                                                                                                                                                                                                                                                                              

                                                                                                                                              Here, the instruction informed the jury that Bogdanov had  



                 4                Young v. State, 374 P.3d 395, 405 (Alaska 2016) (quoting Power Construction, Inc.  



                                                                                                                                                                                                                                                                                                                                                                  (continued...)  



                                                                                                                                                                                                  -  16 -                                                                                                                                                                                                 2691
  


----------------------- Page 17-----------------------

 not broken any laws or court rules, and it directed the jury to assess the credibility of the                                                                                                                                                                                                                   



 eyewitnesses for itself.                                                             As the court noted, the State's instruction answered the juror's                                                                                                                                             



 question and was a "fair response" to the jury's question.                                                                                                                                                         



                                                 Having reviewed the trial as a whole, we do not believe that such a generic                                                                                                                                                                 



 instruction   would   have   had  the   effect   of   improperly   "strengthening"   Bogdanov's  



 testimony in the eyes of the jury, as Phornsavanh claims.                                                                                                                                                    Nor is there any evidence that                                                                  



 it was used that way by the prosecutor.                                                                                                                 To the contrary, the record shows that the                                                                                                            



 prosecutor   did   little   to   rehabilitate   Bogdanov   in   the   eyes   of the                                                                                                                                                                  jury.     Instead,   the  



 prosecutor's strategy was to argue that most, if not all, of the eyewitness testimony was                                                                                                                                                                                                                   



 unreliable.    



                                                  Given these circumstances, and given the fact that the defense attorney was                                                                                                                                                                                 



 allowed to argue the points contained in the defense-requested instruction to the jury, we                                                                                                                                                                                                                      



 find no abuse of discretion in the superior court's choice of instruction.                                                                                                                                                                                            



                                                 In his briefing on appeal, Phornsavanh also raises a separate, but related,   



 claim of plain error.                                                     Phornsavanh argues that the superior court erred in failing to give                                                                                                                                                              



 a specialized eyewitness reliability instruction pursuant to the Alaska Supreme Court's                                                                                                                                                                                                        



                                                                                               5  

 decision in                             Young v. State                                      .                                                                                                                                                                                                                                 

                                                                                                     (We note that Young was decided after Phornsavanh's trial.)  



                                                                                                                                                                                                                                                                                                   

                                                 In  Young,  the  supreme  court  advised  trial  courts  that,  in  cases  where  



                                                                                                                                                                                                                                                                                   

 eyewitnessidentification is asignificant issue, thetrial court "should issuean appropriate  



                                                                                                                                                                                                                                                                                                       6  

                                                                                                                                                                                                                                                                                                             

jury instruction that sets out the relevant factors affecting [eyewitness] reliability."                                                                                                                                                                                                                     The  



                                                                                                                                                                                                                                                                                 

 supreme  court  also  made  clear,  however,  that  the  absence  of  such  a  specialized  



             4           (...continued)  



 v. Taylor & Hintze, 960 P.2d 20, 29 (Alaska 1998)).  



             5            Young, 374 P.3d at 428.  



             6           Id .  



                                                                                                                                                    -  17 -                                                                                                                                                 2691
  


----------------------- Page 18-----------------------

instruction is not automatic grounds for reversal.                                         Instead, the reviewing court must                   



determine whether the defendant was actually prejudiced by the absence of such                                                                       a  

 specialized instruction in a given case.                           7  



                                                                                                                                     

                        Here, we are confident that the absence of a specialized Young instruction  



                                                                                                                                                 

 did not prejudice Phornsavanh. The purpose of such an instruction is to educate the jury  



                                                                                                                                                  

 about factors that can affect eyewitness reliability because such factors are generally not  



                                                                                                                        8  

                                                                                                                                                

known to the public and are not necessarily matters of common sense.                                                       But, unlike most  



                                                                                                                                    

juries, Phornsavanh's jury was well-informed about the factors that affect eyewitness  



                                                                                                                                                 

reliability.  Dr. Loftus testified extensively regarding factors affecting reliability, and  



                                                                                 

both parties relied on Dr. Loftus's expertise.  



                                                                                                                                            

                        Given this extensive expert testimony and the clear alignment of the parties  



                                                                                                                                                      

on the importance of this expert testimony, we find no prejudice in the failure to give a  



                                                       

 specialized Young instruction.  



                                                                                                                               

            Phornsavanh's  claim  that  the  evidence  presented  at  trial  was  legally  

                                                                                                                                       

            insufficient or, in the alternative, that the jury's verdicts were against the  

                                    

            weight of the evidence  



                                                                                                                                                    

                        Phornsavanh argues that the evidence at trial was legally insufficient to  



                                                                                                                                                   

 support his conviction and the superior court therefore erred in denying his motion for  



                                                                                                                                                  

judgment of acquittal.  He argues, in the alternative, that the verdict was contrary to the  



                                                                                                                                                 

weight of the evidence and that the superior court erred in denying his motion for a new  



                                                                                                                                                     

trial.  He also asserts that the superior court applied the wrong legal standard when it  



                                                               

decided his motion for a new trial.  



                                                                                                                 

                        We address Phornsavanh's sufficiency claim first.  



      7     Id. at 429-30.  



      8     Id. at 428.  



                                                                       -  18 -                                                                 2691
  


----------------------- Page 19-----------------------

                       Was   the   evidence   presented   at   trial   legally   sufficient   to   convict  

                       Phornsavanh?  



                       Due process requires that the essential elements of a crime be proven                                            

beyond a reasonable doubt.                       9  

                                                                                                                               

                                                     Because "a properly instructed jury may occasionally  



                                                                                                         

convict even when it can be said that no rational trier of fact could find guilt beyond a  



                                                                                                                                                  

reasonable doubt," the United States Supreme Court has held that the courts have a  



                         

constitutional duty to determine whether the evidence presented at trial is sufficient to  



                                                             10  

                                                                 

support the defendant's conviction. 



                                                                                                                                

                       Alaska  Criminal  Rule  29  is  one  means  of  protecting  a  defendant's  



                                                                                                                                                   

constitutional right to proof beyond a reasonable doubt.  Under Criminal Rule 29(a), a  



                                                                                                              

defendant may move for a judgment of acquittal at the close of the State's evidence or  



                                                    11  

                                                                                                                                                

at the close of all the evidence.                        The trial court is authorized to reserve decision on the  



                                                                                                                                         

motion until after the jury returns with a verdict or the jury is discharged without having  



                               12  

                                                                                                                                              

returned a verdict.                If the motion for judgment of acquittal is denied, the defendant may  



                                                                                                                                               

renew the motion within five days after the jury is discharged and may include, in the  



                                                                                                          13  

                                                                                                                                              

                                                                                                               A defendant can also  

alternative, a motion for a new trial under Criminal Rule 33. 



                                                                                                                                            

challenge the sufficiency of the evidence for the first time on appeal as a claim of plain  



      9    See Jackson v. Virginia, 443 U.S. 307, 316 (1979); see also In re Winship, 397 U.S.  



358, 372 (1970) (Harlan, J., concurring).  



      10   Jackson , 443 U.S. at 317-18; see also Esmailka v. State, 740 P.2d 466, 470 (Alaska  



                                                                                                            

App. 1987) (noting that the Alaska rule regarding sufficiency of the evidence is in accord  

with the constitutional requirements outlined in Jackson).  



      11  

                                                                                                                      

           Alaska R. Crim. P. 29(a). The court may also grant a judgment of acquittal on its own  

motion.  Id.  



      12   Alaska R. Crim. P. 29(b).  



      13  

                  

           Id.  



                                                                     -  19 -                                                                 2691
  


----------------------- Page 20-----------------------

         14  

error.          Whether   the   evidence   presented   at   trial  is  legally   sufficient   to   support   a  



                                                                                                             15  

defendant's conviction is a question of law that we review                                     de novo      .     



                                                                                                                                         

                      The standard a trial court must use to determine whether the defendant is  



                                                                                                                                 

entitled to a judgment of acquittal is the same standard that applies to an appellate court's  



                               

consideration of a claim of insufficiency on appeal.  In both instances, the court is not  



                                                                                                                                       

permitted to reweigh the evidence or assess witness credibility - those are matters for  



                             16  

                                                                                                                                        

the jury to decide.              Instead, the court must view all evidence presented at trial, and all  



                                                                                                                                       

reasonable inferences to be drawn from that evidence, in the light most favorable to the  



jury's verdict, and must then determine whether, viewing the evidence in this manner,  



                                                                                                                              

a fair-minded fact finder could find proof beyond a reasonable doubt on all essential  



                                    17  

                                         

elements of the crime. 



      14   See Shafer v. State, 456 P.2d 466, 467-68 (Alaska 1969) (holding that the defendant  



did not waive his right to question the sufficiency of the evidence by failing to move for a  

                                                                                                            

judgment of  acquittal and that a trial court commits plain error when it fails to enter a  

                      

judgment of acquittal in a case where the evidence is insufficient to sustain the conviction);  

                     

see also Alaska R. Crim. P. 29(a) (authorizing a trial court to grant judgment of acquittal "on  

                                                                                                                         

its own motion" even if the defendant did not move for judgment of acquittal).   



      15   See Des Jardins v. State, 551 P.2d 181, 184 (Alaska 1976).  



      16   See Ratliff v. State, 798 P.2d 1288, 1291 (Alaska App. 1990) ("[T]he weight and  

                                                                                                                          

credibility of evidence are matters for the jury to consider in reaching a verdict, not for the  

                                                                         

reviewing court to decide in ruling on the legal sufficiency of the evidence.").  



      17   See Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008); Simpson v. State, 877  



P.2d 1319, 1320 (Alaska App. 1994); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979).  

                                                                                                      

           We note that this standard is sometimes described as requiring the court to view "'only  

                  

those facts in the record most favorable to the prosecution.'" See, e.g., Dorman v. State, 622  

                                                                                                            

P.2d 448, 453 (Alaska 1981) (quoting Martin v. City of Fairbanks 456 P,2d 462, 464 (Alaska  

                                                                                                     

 1969)).  There is nothing inherently wrong with this formulation of the standard, provided  

                                                                                                          

that it is interpreted to mean that the court must view  all the evidence in the light most  

                                                                                             

favorable to the prosecution. See Jackson, 443 U.S. at 319 (emphasizing that judicial review  

                                                                  

                                                                                                                       (continued...)  



                                                                 - 20 -                                                             2691
  


----------------------- Page 21-----------------------

                                                                     Thus, in the current case, we are required to resolve all the conflicts in favor                                                                                                                                                                                                                                                                           



of the verdict and assume that the jury rejected                                                                                                                                                                                                   almost all of the eyewitness testimony                  



 as unreliable.                                                        We are also required to assume that the jury found Xayavongsy's trial                                                                                                                                                                                                                                                                                         



testimony credible.                                                                                    And we are required to assume that the jury found the State's                                                                                                                                                                                                                                                  



interpretation of the second cell phone video persuasive.                                                                                                                                                                                                                                           



                                                                     On appeal, Phornsavanh points to various reasons to doubt some of this                                                                                                                                                                                                                                                                                            



 evidence. He argues, for example, that no reasonable fact-finder could find Bogdanov's                                                                                                                                                                                                                                                                                                      



"recovered" memory credible.                                                                                                                                 He also argues that no reasonable fact-finder could find                                                                                                                                                                                                                 



the shadow in Phornsavanh's hand to be a gun.                                                                                                                                                                                                            But the jury did not need to believe,                                                                                                                   



beyond a reasonable doubt, that Bogdanov's "recovered" memory was reliable or that                                                                                                                                                                                                                                                                      



the shadow was definitely a gun to convict Phornsavanh. There was other evidence that                                                                                                                                                                                                                                                                                                                                                   



could have constituted proof beyond a reasonable doubt, when viewed in the light most                                                                                                                                                                                                                                                                                                                                             



 favorable to upholding the verdict.                                                                                                                                              That evidence included: (1) forensic evidence from                                                                                                                                                                                              



the ballistics expert and the medical examiner that tended to prove that the shooter had                                                                                                                                                                                                                                                                                                                                                



to be either Phornsavanh or Xayavongsy; (2) Xayavongsy's testimony that he was not                                                                                                                                                                                                                                                                                                                                                        



the shooter; (3) expert testimony from Dr. Loftus establishing reasons to doubt the                                                                                                                                                                                                                                                                                                                                                      



 accuracy and reliability of the contradictory eyewitness testimony; (4) video evidence                                                                                                                                                                                                                                                                                                                     



that showed purposeful body language that was consistent with Phornsavanh rapidly                                                                                                                                                                                                                                                                                                                                    



 approaching   Beshirov   as   if   preparing   to   turn   and   shoot   him;   (5)   video   evidence  



 suggesting that Phornsavanh would have been in the line of fire if Xayavongsy had been                                                                                                                                                                                                                                                                                                                                            



                  17               (...continued)  



includes "all of the evidence . . . in the light most favorable to the prosecution"). But because  

                                                                                                                                                                                                                                                                                                                                                                                                 

this formulation could be misinterpreted as suggesting that the review need not include all  

                                                                                                                                                                                                                     

the evidence presented at trial, we discourage its use in future cases.  See People v. Johnson,  

                                                                                                                                                                                                                                                                                                                                            

 606 P.2d 738, 751 (Cal. 1980) (noting that judicial review of the sufficiency of the evidence  

                                                                                                                                                                                                                                                                                                                                                                                              

that  views  only  parts  of  the  record  in  isolation  would  contravene  the  constitutional  

                                                                                                                                                                                                                                                                                                                                                                                    

requirements of Jackson).  

                                                                                



                                                                                                                                                                                                               - 21 -                                                                                                                                                                                                                 2691
  


----------------------- Page 22-----------------------

the shooter; (6) video evidence of a dark shadow in Phornsavanh's hand that could be                                                            



a gun; (7) video evidence of Phornsavanh's motive to shoot Beshirov in retaliation of                                                                                                                                                               



Beshirov's recent pummeling of him; and (8) Phornsavanh's evasions in his interview                                                                                                                                            



with the police.                                



                                       Viewing all of this evidence in the light most favorable to upholding the                                                                                                                                 



verdict, we conclude that a rational trier of fact could find Phornsavanh guilty beyond                                                    



a reasonable doubt, and the superior court therefore did not err when it denied his motion                                                                                                                                             



for judgment of acquittal.                                                   



  



                                        Was the jury's verdict contrary to the weight of the evidence?                                                                                                                     



                                       A trial court's authority to grant a motion for a new trial if it finds the jury                                                                                                                        



                                                                                                                                                                                                                                        

verdict contrary to the weight of the evidence is derived from common law and is deeply  



                                                                                                                                                      18  

                                                                                                                                                                                                                                 

entrenched in both state and federal procedural law.                                                                                                         As one leading treatise explains,  



                                                                                                                                                                                                                                            

"far from being a denigration or a usurpation of jury trial, [the judge's power to set aside  



                                                                                                                                                                                                                                                      19  

                                                                                                                                                                                                                                                             

the verdict] has long been regarded as an integral part of trial by jury as we know it." 



                                                                                                                                                                                                                                 

As  commentators  and  courts  have  noted,  a  trial  judge  "does  not  sit  to  approve  



          18       See Cassandra Burke Robertson, Invisible Error , 50 Conn. L. Rev. 161, 170 (2018)  



("By the time of the 1768 publication of Blackstone's Commentaries on the Laws of England,  

                                                                                                             

it was already well established that the judge could and should grant a new trial if convinced  

                                                                                                                                                                                                                               

that the jury's verdict was contrary to the 'clear weight' of the evidence.  This responsibility  

                                                                                                                                                                                                                                                             

- often known as the 'thirteenth juror' rule - was incorporated into the early common law  

                                                                                                                                                                                                                        

of the original colonies, and subsequently became part of both state and federal procedure  

                                                                                                                                                                 

throughout the United States.").  



          19        11 Mary Kay Kane, Wright & Miller Fed. Prac. & Proc. Civ.  2806 (3d ed. 2020);  

                                                                                                                                                                                                  

see also Smith v. Times Pub. Co., 36 A. 296, 309 (Pa. 1897) (Williams, J., concurring)  

                                                                                                                                                                                                                 

("[Jurors] are not, and have never been, independent of the court of which they are a part, but  

                                                                                                                                                                                                                                     

their verdicts must meet the approval, or at least they must not offend the sense of justice, of  

                                                                                                                                                                                                                                

the presiding judge.").  



                                                                                                                     - 22 -                                                                                                                   2691
  


----------------------- Page 23-----------------------

miscarriages of justice,"                 20 and the authority to grant a new trial based on the weight of                                         



the evidence "may be the only safeguard available against a miscarriage of justice by the                                                         

jury."21  



                                                                                                                                          

                       Under Alaska Criminal Rule 33, a trial court is authorized to grant a motion  



                                                                                                                                                    

 for a new trial "in the interest of justice" if the trial court finds that the jury's verdict is  



                                                                    22  

                                                                                                                                                     

contrary to the weight of the evidence.                                  The decision to grant or deny a motion for a  



                                                                                                          23  

                                                                                                                                                

new trial is entrusted to the sound discretion of the trial court.                                            An appellate court will  



                                                                                                        24  

                                                                                                            

overturn that decision only if it finds an abuse of discretion. 



                                                                                                                                

                       When a trial court rules on a motion for a new trial, it sits as a metaphorical  



                                                                                                                                                 

"thirteenth juror," independently weighing the evidence and evaluating for itself the  



                                               25  

                                                                                                                                                 

credibility of the witnesses.                      However, mere disagreement with the jury's verdict is not  



      20    11 Mary Kay Kane, Wright & Miller Fed. Prac. & Proc. Civ                                             .  2806 (3d ed. 2020).  



      21  

                                                                                           

            6 Wayne R. LaFave, et al., Criminal Procedure  24.6(d) at 86-87 n.51 (4th ed. 2020)  

 (citing State v. Ellis, 453 S.W.3d 889, 899 (Tenn. 2015)); see also United States v. Morales,  

 902 F.2d 604, 606 (7th Cir. 1990), amended, 910 F.2d 467 (7th Cir. 1990) (emphasizing that  

                                                                                                                 

"if the judge believes there is a serious danger that a miscarriage of justice has occurred -  

                                                                                             

that is, that an innocent person has been convicted - he has the power to set the verdict  

aside, even if he does not think that he made any erroneous rulings at the trial").  



      22  

                                                                                                                                     

            Alaska R. Crim. P. 33 ("The court may grant a new trial to a defendant if required in  

                          

the interest of justice."); Amidon v. State , 565 P.2d 1248, 1262 (Alaska 1977); Howell v.  

State, 917 P.2d 1202, 1212 (Alaska App. 1996).  



      23  

                                                                                            

            See Hunter, 364 P.3d at 448 ("We commit this determination to trial courts' sound  

                                                                                                                                  

discretion based on our trust in their position, expertise, and humility.  History has indicated  

that this trust is well deserved.").  



      24    Id. at 447; Dorman, 622 P.2d at 454.   



      25    Hunter v. Philip Morris USA Inc., 364 P.3d 439, 447 (Alaska 2015); Dorman, 622  



P.2d at 454.  



                                                                      - 23 -                                                                  2691
  


----------------------- Page 24-----------------------

                                                                  26  

enough to invalidate a jury's verdict.                                A trial court's discretion to grant a new trial                           



                                                                                                     27  

should be exercised "when necessary to prevent injustice,"                                                                               

                                                                                                        but it is otherwise intended  



                                                                    28                                                                              29  

                                                                                                                                                         

to be used "sparingly and with caution."                                A jury verdict is not to be overturned lightly. 



                                                                                                                                                 

                       Although the authority of a trial court to grant a new trial on the ground that  



                                                                                                                                                    

the verdict was contrary to the weight of the evidence is clear, "[t]he standard that is to  



                                                                                    30  

                                                                                                                                      

control in passing on motions of this kind is not."                                     Part of the difficulty is the "recurrent  



                                                                                                                                              

tendency" of courts to confuse the standard for deciding a motion for a new trial based  



                                                                                                                                                    

on the weight of the evidence with the standard for deciding a motion for a judgment of  



      26    Hunter, 364 P.3d at 448.  



      27    Id.   (quoting  12  James  W.  Moore, Federal  Practice    59.13[1],                                          at  59-38  (3d  ed.  



2015)); see United States v. Parelius, 83 F. Supp. 617, 618 (D. Haw. 1949) ("If the judge sits   

as a thirteenth juror . . .               he should act in preventing injustice when deliberated discretion  

prompts such act.").  



      28    See United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980) ("This authority  



                                                      

should  be  exercised  sparingly  and  with  caution;  nevertheless,  the  trial  court  has  wide  

                                                                                                                                                 

discretion in deciding whether to grant a new trial in the interest of justice."); 11 Mary Kay  

                                                                                                     

Kane,  Wright & Miller Fed. Prac. & Proc. Civ.  2806 (3d ed. 2020) ("[A] decent respect  

                                                   

for the collective wisdom of the jury, and for the function entrusted to it in our system,  

                                                                                                                                         

certainly  suggests  that  in  most  cases  the  judge  should  accept  the  findings  of  the  jury,  

                         

regardless  of  the  judge's  own  doubts  on  the  matter.");  cf.  Hunter,  364  P.3d  at  448  

("Experience has shown that there is little cause for concern about trial courts ordering new  

trials too frequently:  [s]uch orders are a distinct exception.").  



      29  

                                                                                                                         

            Hunter, 364 P.3d at 448; Dorman, 622 P.2d at 454; see also  3 Sarah N. Welling,  

                                                    

 Wright & Miller Fed. Prac. & Proc. Crim.  582 (4th ed. 2020) ("The power to grant a new  

                                                                                                                         

trial [based on the weight of the evidence] should be invoked only in exceptional cases,  

where the evidence weighs heavily against the verdict.").  



      30    11 Mary Kay Kane, Wright & Miller Fed. Prac. & Proc. Civ.  2806 (3d ed. 2020).  

                                                                                                                    



                                                                      - 24 -                                                                   2691
  


----------------------- Page 25-----------------------

acquittal.31  As already explained, when a trial court rules on a motion for judgment of                                                       



acquittal, the court is required to view the evidence - and all reasonable inferences                                            



derived   from   that   evidence   -   in   the   light   most   favorable   to   upholding   the   jury's  



             32 

                                                                                                                                              

verdict.         In contrast, when a trial court rules on a motion for a new trial based on the  



                                                                                                                             

weight of the evidence, the court must independently weigh the evidence and make its  



                                                      33  

                                                                                                                                               

own credibility determinations.                            Because of this, a court may set aside a verdict as  



                                                                                                                                             34  

                                                                                                                                                  

unjust even when the evidence is otherwise legally sufficient to support the verdict. 



                                                                                                                                               

                       In the current case, Phornsavanh moved for a judgment of acquittal and he  



                                                                                                                                             

also moved for a new trial on the ground that the guilty verdict was contrary to the  



                                                                                                                                       

weight of the evidence.  The superior court resolved both motions in a single written  



                                                                                                                                          

order.  In the portion of the order addressing the new trial motion, the superior court  



                                                                                                                                    

acknowledged that it was required to independently assess the weight of the evidence  



                                                                                                                                                    

and the credibility of the witnesses without deference to the jury's view of these matters.  



                                                                                                                                               

But the court's analysis of the new trial motion nevertheless repeatedly referred to an  



                                                                                                                                             

abstract  "fact-finder"  and  what  that  fact-finder  could  "reasonably  infer"  from  the  



                                                                                                                                    

evidence. The court gave contradictory statements of its own view of what the evidence  



                                                                                                                                             

was, and at one point even noted in a footnote that, if this had been a bench trial, the  



      31   Id.  



      32   See Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Johnson v. State , 188 P.3d 700,  



702 (Alaska App. 2008).  



      33   Hunter v. Philip Morris USA Inc., 364 P.3d 439, 447 (Alaska 2015).  



      34   Id. ; see also United States v. Rothrock, 806 F.2d 318, 321 (1st Cir. 1986) (affirming  



both the trial court's denial of a motion for judgement  of acquittal and the trial court's  

                                                                                                  

granting of a new trial to avoid injustice because "[a] district court has greater power to order  

                    

a new trial than to overturn a jury's verdict through a judgment of acquittal").  



                                                                    - 25 -                                                                 2691
  


----------------------- Page 26-----------------------

 court "might well have not found that the state had proven its case beyond a reasonable                                                                                                    



doubt."   The court did not explain what it meant by that footnote, and, at sentencing, the                                                                                                                     



 court was adamant that it "want[ed] to make it clear that [its] personal opinion has never                                                                                                               



been expressed and will not be."                                                   



                                 Phornsavanh argues that the superior court failed to apply the correct legal                                                                                               



 standard when it assessed his motion for a new trial based on the weight of the evidence.                                                                                                                                



We agree. When a trial court rules on a motion for a new trial based on the weight of the                                                                                                                       



 evidence, the trial court must take a "'personal view of the evidence'" and "'exercise its                                                                                                                       



discretion    and    independently    weigh    the    evidence,'"    without    reference    to    what  



                                                                                 35  

"reasonable   jurors"   could   find.                                                                                                                                                                            

                                                                                           The  trial  court  must  then  "use  its  discretion  to  



                                                                                                                                                                                                    

 determine whether a verdict is against the weight of the evidence - not merely whether  



                                                                                                                                                                                                                

the trial court disagrees with the verdict - and whether a new trial is necessary 'in the  



                                                                                                                          36  

                                                                                               

interest of justice,' that is, 'to prevent injustice.'" 



                                                                                                                                                                                                                

                                  "It is indisputable that a primary goal, perhaps the paramount goal, of the  



                                                                                                                                                                                                                   37  

                                                                                                                                                                                                                          

 criminaljusticesystemis toprotect theinnocentaccused against erroneous conviction." 



                                                                                                                                                                                                                

Thus, "[i]f the complete record, testimonial and physical, leaves a strong doubt as to the  



                                                                                                                                                                                                 

defendant's guilt, even though not so strong a doubt as to require a judgment of acquittal,  



         35      Hunter, 364 P.3d at 452-53 (quoting Kava v. American Honda Motor Corp                                                                                                            , 48 P.3d  



 1170, 1177 (Alaska 2002)).  



         36      Id. at 448 (quoting Kava, 48 P.3d at 1176-77 and Alaska R. Civ. P. 59(a)).  



         37  

                                                                                                                                                                                

                 Shaw v. State, Dep't of Admin, 861 P.2d 566, 570 (Alaska 1993); see also Yates v.  

Aiken , 484 U.S. 211, 214 (1988) ("[I]t is far worse to convict an innocent man than to let a  

                                                                                                                                                

guilty man go free." (quoting In re Winship , 397 U.S. 358, 372 (1970))); 1 Lafave, et al.,  

                                                                                                                                                                                            

 Criminal Procedure  1.5(e), at 243-57 (4th ed. 2020); cf. United States v. Polin, 824 F.Supp.  

                                                                                                                                                               

 542, 551 (E.D. Pa. 1993) (concluding that new trial is warranted if there is a "real concern"  

that the defendant is innocent), aff'd, 22 F.3d 304 (3d Cir. 1994).  



                                                                                                     - 26 -                                                                                                 2691
  


----------------------- Page 27-----------------------

the district judge may be obliged to grant a new trial."                                       38  Likewise, a trial court should   



grant a motion for a new trial in "exceptional circumstances" such as when there is "a                       



                                                                                                             39  

real concern that an innocent person may have been convicted."                                                                                     

                                                                                                                  Granting a motion for  



                                                                                                              40  

                                                                                                                   

                                                                                                   

 a new trial results only in a new trial; jeopardy does not attach. 



                        Because it is the trial court that has viewed the evidence and heard the  

                                                                                                                                                  



witnesses, it is the trial court that is in the best position to determine if the interests of  

                                                                                                                                                    

justice require a new trial.41  

                                                                                                                                    

                                                   An appellate court will reverse a trial court's ruling on a  



                                                                                                                                        42  

                                                                                                                                                  

motion for a new trial only if it finds that the trial court abused its discretion.                                                          In the  



                                                                                                                                                  

context of a trial court's denial of a motion for a new trial based on the weight of the  



                                                                                                                                       

 evidence,  an  appellate  court  will  find  an  abuse  of  discretion  only  if  the  evidence  



                                                                                                                                           

 supporting the verdict is "so slight and unconvincing as to make the verdict plainly  



                                              43  

                                                  

                                 

unreasonable and unjust." 



                                                                                                                                           

                        In  a  recent  civil  case,  Hunter  v.  Philip  Morris  USA,  Inc.,  the  Alaska  



                                                                                                                                                 

 Supreme Court noted that this Court has erroneously referred to the "so slight and  



      38    United States v. Morales, 910 F.2d 467, 468 (7th Cir. 1990),                                        amending  902 F.2d 604  



 (7th Cir. 1990)).  



      39    United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992) ("There must be a real  

                                                        

concern that an innocent person may have been convicted.  It is only when it appears that an  

                                                                                                                  

injustice has been done that there is a need for a new trial 'in the interest of justice.'").  



      40    Tibbs v. Florida, 457 U.S. 31, 45 (1982).  



      41    Hunter, 364 P.3d at 447-48; see also United States v. Morales, 902 F.2d 604, 605  

                                                                                                        

 ("Because the trial judge is in a better position than we to evaluate such a motion - he heard  

the witnesses and lawyers and watched the jurors as they listened to the evidence - the  

                                                                                                    

 standard  of  appellate  review  is,  as  the  cases  cited  indicate,  a  highly deferential  one."),  

                                                                                                                        

amended, 910 F.2d 467 (7th Cir. 1990).  



      42    Hunter, 364 P.3d at 448.  



      43    Id. at 449 (quoting Ahlstrom v. Cummings , 388 P.2d 261, 262 (Alaska 1964)).  



                                                                       - 27 -                                                                  2691
  


----------------------- Page 28-----------------------

unconvincing"  appellate  standard as though it applied to trial courts deciding a motion                                        

for a new trial in the first instance.                   44                                                                           

                                                             We accept the supreme court's correction to our  



                                                                                                                                      

jurisprudence, and we hereby disavow our cases that have erroneously confused the two  



                 45  

 standards.            



                      In Hunter, the supreme court held that the appropriate standard for a trial  

                                                                                                                                      



court to use in a civil case when determining whether the verdict is against the weight  

                                                                                                                                 



of  the  evidence  is  the  standard  articulated  in  Kava  v.  American  Honda  Motor  

                                                                                                                   



 Corporation:  

                        



                      [A] trial court may set aside a verdict and order a new trial in  

                                                                                                                    

                      the interest of justice if the verdict is against the weight of the  

                                                                                                                  

                      evidence.  In deciding a motion for a new trial on this basis,  

                                                                                                              

                      the court must use its discretion and independently weigh the  

                                                                                                                  

                      evidence. A court may set aside a verdict as being against the  

                                                                                                                  

                      weight  of  the  evidence  even  when  there  is  substantial  

                                                                                                    

                      evidence to support it.[46]  

                                                       



                                                                                                                                       

The supreme court noted that additional guidance could be found in the language of the  



                                                                                                                                        

rule, which authorizes a trial court to grant a new trial "if required in the interest of  



              47  

                                                                                                                              

justice."          The court also directed trial courts to the most recent edition of Moore's  



                                                                                                                              

Federal Practice, which suggests that more complex cases deserve a more exacting  



      44   Id. at 448-49.  



      45   See, e.g.,  Taylor v. State, 262 P.3d 232, 234 (Alaska App. 2011); White v. State, 298  



P.3d 884, 885-86 (Alaska App. 2013); Coleman v. State, 407 P.3d 502, 512 (Alaska App.   

2017); Adams v. State , 440 P.3d 337, 341 (Alaska App. 2019).  Contrast Howell v. State, 917  

P.2d 1202, 1212 (Alaska App. 1996) (properly identifying the "so slight and unconvincing"   

 standard as an appellate standard).    



      46   Hunter, 364 P.3d at 447-48 (quoting Kava v. American Honda Motor Corp., 48 P.3d  



 1170, 1176 (Alaska 2002)).  



      47   Id. at 448 (quoting Alaska R. Civ. P. 59(a)).  



                                                                 - 28 -                                                             2691
  


----------------------- Page 29-----------------------

scrutiny and again emphasizes that a trial court's discretion should be exercised "when                                                



                                                      48  

necessary to prevent injustice."                                                                                                              

                                                           However, the supreme court otherwise declined to  



                                                                                                                                            

"further refine" the Kava  standard, concluding that any further attempts to refine the  



                                                                                                                              49  

                                                                                                                 

standard "may run the significant risk of muddling more than they clarify." 



                                                                                                                                              

                      On appeal, the State argues that the holding in Hunter does not apply to  



                                                                                                                                             

Phornsavanh's case because Hunter was a civil case. But we perceive no reason why the  



                                                                                                                                           

standard for granting a new trial should be higher in a criminal case than it is in a civil  



                                                                                                                                          

case. The language of the civil and criminal rules are identical and they both derive from  



                                                                                                                                                

the same common law tradition.  Alaska Civil Rule 59(a) authorizes the granting of a  



                                                                                                                                   

new trial "if required in the interest of justice."  Alaska Criminal Rule 33(a) likewise  



                                                                                                                                         

authorizes a new trial "if required in the interest of justice."  Accordingly, in our view,  



                                                                                                                                         

the criticisms of various new trial formulations discussed in Hunter are equally apt when  



                                                                                                                                           

applied to criminal cases.  We likewise conclude that Hunter 's emphasis on the trial  



                                                                                                                                             

court's broad discretion and the need for the trial court to take a "personal view" of the  



                                                                                                                 50  

                                                                                                                        

evidence provides useful guidance for trial courts in criminal cases. 



                                                                                                                                        

                      The Hunter decision was issued four months after the superior court issued  



                                                                                                                                   

its decision denying Phornsavanh's motion for a new trial.  The superior court therefore  



                                                                                                                                             

did not have the benefit of Hunter 's clarification of the trial court standard.  Instead, the  



                                                                                                                                      

court relied on our prior misleading caselaw, and thecourt deniedPhornsavanh's motion  



                                                                                                                                               

for a new trial because it found that the evidence was not "so slight and unconvincing as  



                                                                                                                                             

to make the verdict plainly unreasonable and unjust."  But, as just explained, this is the  



      48   Id.  (citing 12 James W.M. Moore, Moore's Federal Practice  59.13[1], at 59-39 (3d  



ed. 2020)).  



      49   Id.  



      50   Id. at 452 (quoting Kava, 48 P.3d at 1177).  



                                                                    - 29 -                                                                2691
  


----------------------- Page 30-----------------------

standard for appellate courts when reviewing a trial court's denial of a motion for a new  

                                                                                                                               



trial.  It is not the standard that should be used by the trial court in the first instance.  

                                                                                                                                 



                    Because we cannot determinewhatthesuperior court would have ruled had  

                                                                                                                               



it understood the singular importance of its role in independently assessing the motion  

                                                                                                                         



for a new trial in the interest of justice, we conclude that a remand for reconsideration  

         



of Phornsavanh's motion for a new trial under the correct legal standard is required.  

                                                                                                                                    



          Conclusion  



                    This case is REMANDED to the superior court for reconsideration of the  

                                                                                                                                



motion for a new trial on the ground that the verdicts were against the weight of the  

                                                                                                                               



evidence.  We retain jurisdiction.  The superior court shall hold a hearing and transmit  

                                                                                                                        



its findings to this Court within 90 days of this decision. This deadline may be extended  

                                                                                                                       



by the superior court for good cause and notification to this Court.  

                                                                                                       



                                                             -  30 -                                                         2691
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


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

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC