Opinion
A-13820 A-13829
06-12-2024
KIRIL Z. BASARGIN, Appellant, v. STATE OF ALASKA, Appellee.
Susan Orlansky, Reeves Amodio, LLC, Anchorage, for the Appellant. Seneca Theno Freitag, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the District Court, Third Judicial District Nos. 3NA-14-00109 CR &3NA-18-00058 CR, Naknek, Michael Aiello, Magistrate Judge.
Susan Orlansky, Reeves Amodio, LLC, Anchorage, for the Appellant.
Seneca Theno Freitag, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
TERRELL, Judge
Following a bench trial, the district court found that Kiril Z. Basargin committed the violation of fishing in closed waters. The court also found that Basargin therefore violated the conditions of his probation for a prior misdemeanor conviction for fishing in closed waters. The court imposed a maximum fine of $9,000 for the violation and imposed $3,000 of the suspended portion of the fine in the prior misdemeanor case, for a composite fine of $12,000.
AS 16.05.722; 5 Alaska Administrative Code (AAC) 06.350(f).
AS 16.05.723; 5 AAC 06.350(f).
On appeal, Basargin argues that there was insufficient evidence for the district court to find that he fished in closed waters, and he challenges multiple aspects of the fines. We conclude that there was sufficient evidence to support the court's finding that he fished in closed waters and affirm his conviction. We also largely reject Basargin's challenges to his fines. But we agree with Basargin that the district court appears to have misunderstood an aspect of the record when sentencing him and that this misunderstanding of the record may have affected the composite fine the district court imposed. We therefore remand for the district court to reconsider the fines it imposed in light of this clarification.
Why we conclude that sufficient evidence supports the district court's finding that Basargin fished in closed waters
At trial, two witnesses testified, Wildlife Trooper Tim Hall and Basargin. Trooper Hall testified that on June 27, 2018 he was patrolling the northern line of the Egegik Bay fishing district with a "smaller jet-powered patrol vessel." Prior to patrolling, he verified that the GPS in his boat was working properly and that the district boundary lines were properly marked in the GPS. The GPS had an estimated position error - i.e., a margin of error - of 9.84 feet. According to Hall, the current ran south into the district, but the wind was blowing from the southeast out of the district at about twenty miles per hour.
The Egegik District contains "all waters south of a line between 58° 19.10' N. lat., 157° 36.65' W. long. and 58° 17.93' N. lat., 157° 32.67' W. long., east of a line between 58° 19.10' N. lat., 157° 36.65' W. long. and 58° 11.00' N. lat., 157° 38.10' W. long., and north of a line between 58° 11.00' N. lat., 157° 38.10' W. long. and 58° 09.44' N. lat., 157° 32.97' W. long." 5 AAC 06.200(c).
Trooper Hall testified that he saw several boats that had gear outside the district. Basargin's boat, the Ocean Ranger, was the second of these. Hall testified that the boat was easy to identify because its stern was directly facing him, allowing him to clearly see the name on the back of the boat. He also testified that the boat was unique in that it was bigger than the other boats and had a raft stored in an unusual way. According to Hall, the Ocean Ranger "was towing hard on [its] net," "evidenced by . . . black smoke from the diesel-powered engine being revved up at high revolutions to tow the net back over the [district] line." The net that the boat was towing formed an L shape as it was being towed into the district.
Trooper Hall testified that he marked, or "dropped," where the Ocean Ranger's net was in his GPS three times by positioning his boat over the net and pressing the mark button on the GPS. The GPS informed Hall of the "cross track error" - the distance of the mark from the northern boundary of the district. He testified that the marks for the Ocean Ranger's net were marks sixty-eight, sixty-nine, and seventy - the furthest of which, mark seventy, was 158 feet over the line. A photo of the GPS showing the marks was admitted into evidence.
Trooper Hall testified that he was sure these marks corresponded to the Ocean Ranger because he wrote the name of the boat and the distance it was over the line, as well as "possibly the time" and at least one mark number, on the window with a dry-erase marker and later copied this into his notebook. Hall testified that in his notes he had written down that the Ocean Ranger was 155 feet from the north line, and he attributed the difference to a slight delay between when he glanced at the GPS and when he pushed the mark button. Hall also testified that he remembered the Ocean Ranger was the second boat over the line and that that corresponded with marks sixty-eight, sixty-nine, and seventy. And he noted that these three marks were "clearly in different areas on the line" as compared to other marks Hall made that day, indicating that they were all from one boat.
After Trooper Hall marked the location of the Ocean Ranger's net, he then proceeded on to the next boat that was over the line. A little over an hour later, Hall interviewed Basargin on the Ocean Ranger. Hall confirmed that Basargin had the correct coordinates for the north line in his GPS. According to Hall, Basargin admitted that his nets were over the line, saying that he "thought he was going to be okay but got pushed out by the wind and ended up with his gear outside." Hall testified that Basargin told him that the set of his net that Hall had marked earlier caught approximately 100 fish.
Basargin testified that he was inside of the north line all day. He said that his boat was positioned 964 feet inside the line and that his net was 900 feet long. He testified that the current was still pushing out a little bit, and he "tried to hold it and stay inside." Basargin testified that he set his gear in a straight line, and it would not have formed an L shape as he towed it in without a riptide, which, according to him, Egegik Bay does not typically have. He also testified that he was inside of the position of other boats.
Basargin also denied having told Hall that he had been pushed out of the district. He testified that he told Hall that he thought he had been pushed out when he saw the trooper boat over his net. But when the trooper boat left without contacting him, he thought that meant he was within the line.
The conversation between Hall and Basargin was audio recorded, and the audio was played at trial. The quality of the audio is poor due to the wind, and it was not transcribed for appeal. Our review of the audio appears to support Hall's testimony. On the recording, Basargin stated, "I was inside it. I pulled my gear about 300 feet inside and then I started hauling my other end. The wind started pushing, pushing. I kind of noticed it was pushing us out. So that's when I grabbed the other end and I started hauling it in." He said, "I tried to do my best not to stay out." As Hall was leaving, Basargin said, "I tried my best. I didn't go beside the line. The wind pushed me out. I tried to stay in," but he also said, "I fished like 300 feet inside. It's pushing, pushing, pushing. The wind pushed it out."
Following trial, the district court found Basargin guilty of fishing in closed waters. Basargin now appeals, arguing that there was insufficient evidence to support this finding.
Regulations governing commercial fishing in the Bristol Bay area prohibit fishing for salmon outside of a fishing district, subject to an exception not relevant here. Negligent violation of these regulations is a misdemeanor; violation without any culpable mental state is a violation punishable by a fine. Basargin's case was originally charged as a misdemeanor, but the State elected to proceed to trial with the case as a violation. Thus, all the State had to prove was that Basargin was fishing for salmon outside a fishing district, and no mental state applied.
See 5 AAC 06.350(f) ("Salmon may not be taken in any locations that are not described in 5 AAC 06.200[.]"); 5 AAC 06.200 (setting forth fishing districts, including the Egegik District); see also AS 16.05.940(35) ("'[T]ake' means taking, pursuing, hunting, fishing, trapping, or in any manner disturbing, capturing, or killing or attempting to take, pursue, hunt, fish, trap, or in any manner capture or kill fish or game[.]").
AS 16.05.722-.723.
When we evaluate the sufficiency of the evidence to support a finding of guilt, we view the evidence (and any inferences that could be reasonably drawn from the evidence) in the light most favorable to upholding the finding of guilt. Evidence is sufficient if "a reasonable fact-finder could have concluded that the State's case was proved beyond a reasonable doubt."
Stacy v. State, 500 P.3d 1023, 1032 (Alaska App. 2021); Williams v. State, 486 P.3d 1134, 1138 (Alaska App. 2021) (citing Inga v. State, 440 P.3d 345, 350 (Alaska App. 2019)).
Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008). We have explained that, although the Alaska Supreme Court used the phrase "substantial evidence" to describe an appellate court's review of a claim of insufficient evidence in the context of bench trials, see Helmer v. State, 608 P.2d 38, 39 (Alaska 1980), this test is the same test that an appellate court uses to review a sufficiency claim in the context of a jury verdict. Shayen v. State, 373 P.3d 532, 535 (Alaska App. 2015), amended in part on reh'g on other grounds, 2016 WL 5092527 (Alaska App. July 7, 2016) (unpublished).
Basargin's contention on appeal is that there was insufficient evidence for the district court to conclude that mark seventy, which was 158 feet outside the fishing district, corresponded with the Ocean Ranger's net, as opposed to the net of a different boat. He notes that Trooper Hall took no pictures showing the position of the Ocean Ranger and its net relative to the trooper's boat at the time he marked the position of the net. Instead, the only picture he took of the Ocean Ranger was later when he was about to interview Basargin. Basargin also notes that Hall's testimony was not particularly clear about what he actually wrote on his windshield and that he also did not take any pictures of the windshield, instead only copying what was on the windshield into his notebook after the fact. Ultimately, Basargin argues that "the State failed to prove beyond the simple say-so of the trooper that those 'drops' were made over Basargin's net."
But the testimony of a witness at trial is evidence. And Trooper Hall gave detailed testimony about how he patrolled the northern boundary of the district, what he saw while doing so, and how he knew mark seventy corresponded with the Ocean Ranger's net. His testimony that the Ocean Ranger's net was over the line also appears consistent with Basargin's statements in the interview with Hall later that day. We therefore conclude that there was sufficient evidence for the district court to find beyond a reasonable doubt that Basargin fished in closed waters.
Why we reject Basargin's primary challenges to the fines imposed but remand for reconsideration of the fines based on an error in the description of Basargin's fines history that may have affected the district court's decision
In addition to charging Basargin with a violation for fishing in closed waters, the State also alleged that Basargin violated his probation for a prior misdemeanor fishing in closed waters conviction. In the prior misdemeanor case, Basargin was fined $15,000 with $7,500 suspended ($7,500 to pay) and was put on probation with the conditions that he commit no commercial fishing or fish and game violations during the probation period. The State alleged that he violated the conditions of his probation by fishing in closed waters as well as by incurring two convictions in unrelated commercial fishing cases. After finding Basargin guilty of fishing in closed waters, the district court also found that Basargin violated his probation and proceeded to sentencing on both the violation for fishing in closed waters and the probation violation.
Because this was Basargin's third or subsequent conviction within a ten-year period, the district court was authorized to impose a fine of up to $9,000 for the violation. Additionally, the district court could impose any portion of the $7,500 suspended fine from the misdemeanor conviction.
AS 16.05.722(a)(3).
At sentencing, the State represented that Basargin had an extensive history of commercial fishing and fish and game offenses. Specifically, the State stated that Basargin had been convicted of five violations from 1997 to 2009 - for fishing in closed waters, transporting illegal game, fishing in a closed season twice, and then again for fishing in closed waters - and was assessed fines with unsuspended amounts of $2,000, $100, $3,000, $3,000, and $4,000. He was then convicted of a misdemeanor for fishing in closed waters for conduct in 2014 (the crime for which he was on probation) and, as discussed above, was given a fine with an unsuspended amount of $7,500. And he was then convicted of violations for failing to submit a fish ticket within seven days and failing to imprint a processor code plate on fish tickets for conduct in 2017 (the other bases asserted for finding a probation violation); the State did not know the amount he was fined for these violations. Basargin argued that it was inappropriate to give weight to his older violations given the time that had passed.
The State requested the maximum fine of $9,000 for the violation. The State noted that escalating fines in the past had not been sufficient to deter Basargin from this type of conduct and argued that a higher fine than Basargin had previously received was therefore appropriate. The State also argued that a maximum fine was appropriate because Basargin's conduct was the kind of conduct that harmed people actually fishing within the district. The State noted that Trooper Hall testified that the tide was flowing into the district, meaning that people whose nets were wholly within the district were likely to catch significantly fewer fish because of the nets that were across the line.
The State also argued that, at this point, probation had failed. The State requested that the court terminate probation and impose $3,000 of the suspended fine, reasoning that a composite fine of $12,000 would best deter Basargin from future violations.
The district court accepted the State's recommendation and imposed fines of $9,000 and $3,000 and terminated probation. In considering the Chaney criteria, the district court found that, given Basargin's lengthy history of offenses, rehabilitation should not be a primary goal in sentencing. Instead, it found that the fine needed to be geared towards deterring Basargin and other members of the community. It acknowledged that Basargin's commercial fishing offenses were, with the exception of the misdemeanor, strict liability offenses, but it concluded that the pattern of violations over the years required a fine based on deterrence. And it cited Trooper Hall's testimony that four boats had their nets over the line that day as support for the position that general deterrence also needed to be emphasized.
See State v. Chaney, 477 P.2d 441, 444 (Alaska 1970), codified in AS 12.55.005.
The district court stated that it was hesitant to impose such a high fine given the COVID-19 pandemic and the lower fishing harvests the past few seasons. But it also noted that Basargin's conduct occurred prior to the pandemic, and found that a lower sentence would not be sufficient given the history of escalating fines that Basargin had received.
When discussing the probation violation, the district court noted that the underlying offense for which Basargin was on probation was misdemeanor fishing in closed waters, which means that Basargin had previously been at least negligent about the fact that he was fishing in closed waters. And the district court found that that the tide was flowing from outside the district into the district, meaning that Basargin "had to fight against [the tide] . . . for his net to be across [the line]," although the district court also acknowledged that "there could be a little bit of an issue with the wind blowing in the opposite direction."
Basargin raises a number of challenges to his sentence.
With respect to the $9,000 fine for the violation, Basargin argues that the district court erred by imposing the maximum fine without finding that he was a worst offender. But, assuming that a worst offender finding is required to impose a maximum fine, the district court implicitly found that Basargin was a worst offender by finding that a fine less than the maximum fine would be insufficient to deter Basargin based on his lengthy history of commercial fishing offenses. Basargin contends that his convictions that were over ten years old should not be considered when evaluating whether he was a worst offender because the legislature imposed a ten-year look-back period for the level of fine. But a worst offender finding may be based on an evaluation of the full "character and background of the defendant." The record supports finding that Basargin was a worst offender.
See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975) ("We have recognized in past decisions that maximum sentences generally should not be imposed 'without some foundation for characterizing a defendant as the worst type of offender.'" (quoting Galaktionoff v. State, 486 P.2d 919, 924 (Alaska 1971))). But see Ashton v. State, 737 P.2d 1365, 1366 n.1 (Alaska App. 1987) (concluding, under a prior scheme for assessing fines, that a defendant need not be a worst offender to receive a maximum fine).
See Walls v. State, 598 P.2d 949, 951 (Alaska 1979) ("The trial judge did not expressly find Walls to be the worst type of offender, but where the record provides ample support for such a classification, this lapse is harmless."); Hintz v. State, 627 P.2d 207, 210 (Alaska 1981) ("In evaluating whether a particular defendant is a worst offender we look at the manner in which the crime was committed, as well as the character and background of the defendant.").
Hintz, 627 P.2d at 210; see also Wortham, 537 P.2d at 1120 (considering a defendant's lengthy record of related offenses in concluding that a court could characterize him as a worst offender).
With respect to the $3,000 fine for the probation violation, Basargin argues that the district court failed to consider the nature and circumstances of the original offense for which he was on probation. He argues that it was insufficient to note that Basargin was on probation for negligent conduct because that would be true of anyone convicted of a misdemeanor commercial fishing violation and therefore said nothing about the relative seriousness of Basargin's crime. But the district court noted that Basargin had previously been negligent about his net being outside a fishing district before finding that Basargin again had his net outside a fishing district in circumstances suggesting a level of culpability as to that fact. We see no error in the district court's consideration of the conduct for which Basargin was on probation.
See Toney v. State, 785 P.2d 902, 903 (Alaska App. 1990) ("Because a sentence imposed upon revocation of probation constitutes punishment for the defendant's original offense, the length of the sentence ultimately imposed must be appropriate to the nature and circumstances of the original offense.").
Basargin argues that the district court failed to make adequate findings about the Chaney criteria. But the district court expressly referenced the Chaney criteria and considered the goal of rehabilitation, even though he ultimately declined to place emphasis on that goal. We have explained:
See Smith v. State, 691 P.2d 293, 294 (Alaska App. 1984).
While the sentencing goals of Chaney must be considered in each case, it is only in instances where the court's remarks afford no insight to its reasons for sentencing or where they affirmatively indicate that its sentence was not properly grounded on the Chaney goals that failure to address the goals expressly will require a remand.
Id. at 295.
The district court adequately addressed the Chaney criteria in imposing the fines.
In his opening brief, Basargin specifically argues that the district court made insufficient findings as to the Chaney criteria when addressing the probation violation because it mainly referred back to the findings it made when it discussed the violation for which Basargin had just been convicted. But in his reply brief, Basargin argues that the district court erred by considering the two sentences separately, as opposed to "specifically determin[ing] that the composite sentence it elect[ed] to impose [was] justified under the totality of the circumstances." (quoting Moya v. State, 769 P.2d 447, 449 (Alaska App. 1989)). Basargin waived this claim by raising it for the first time in his reply brief. See Alaska R. App. P. 212(c)(3) ("This [reply] brief may raise no contentions not previously raised in either the appellant's or appellee's brief."); Nell v. State, 642 P.2d 1361, 1370 (Alaska App. 1982) (holding that the defendant's argument was waived because he raised it for the first time in his reply brief). In any event, the claim is also meritless. As we explained, the district court adequately considered the Chaney criteria. Similarly, we read the district court's remarks as considering the composite sentence that was warranted.
Basargin also argues that the district court was clearly mistaken in emphasizing the goal of deterrence. Basargin notes that he was convicted of a strict liability offense and that conviction of a strict liability offense "does not mark the actor as one who needs to be subjected to punishment in order to deter him or others from behaving similarly in the future." The district court could reasonably conclude that Basargin needed to be deterred from placing himself in compromising positions that were likely to lead to such strict liability offenses. Moreover, Basargin was on probation for a misdemeanor that required a negligent mental state, and, as the district court noted, had his net outside the fishing district despite the tide flowing toward the district, suggesting that he may have been negligent in this case as well. The district court was not clearly mistaken in emphasizing deterrence.
See Beran v. State, 705 P.2d 1280, 1289 (Alaska App. 1985) (quoting Wayne R. LaFave & Austin W. Scott Jr., Criminal Law § 31, at 222 (1972)).
See Smith, 691 P.2d at 295 ("[I]t is the court's prerogative to decide the weight and order of priority to be given to each goal, based on the circumstances of the individual case.").
That said, Basargin appears to be correct that both the State and the district court misunderstood an aspect of the record. When the State presented Basargin's offense history, he stated that Basargin had been fined $9,000 with $5,000 suspended for a fishing in closed waters violation in 2009 - the violation prior to Basargin's 2014 misdemeanor conviction for fishing in closed waters. But the State later referred to the 2009 fine as having an unsuspended portion of $8,500, as opposed to $4,000. And the State argued that a maximum fine of $9,000 was necessary to impose incrementally higher fines. The district court similarly referenced a prior unsuspended fine of $8,500 when announcing Basargin's sentence.
Given the district court's emphasis on deterrence and on incrementally increasing fines, we cannot say that this error did not affect the ultimate composite fine the district court decided to impose. We therefore remand for the district court to reconsider Basargin's fines in light of this clarification.
Conclusion
We REMAND for reconsideration of Basargin's fines consistent with this opinion. Otherwise, the judgment of the district court is AFFIRMED.