Opinion
Court of Appeals No. A-12418 No. 6807
07-17-2019
JOSHUA J. WODYGA, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Paul A. Clark, Clark Legal Services, Jersey City, New Jersey, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 1KE-14-00132 CR
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Ketchikan, Trevor N. Stephens, Judge. Appearances: Paul A. Clark, Clark Legal Services, Jersey City, New Jersey, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, Harbison, Judge, and Coats, Senior Judge. Judge HARBISON.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Joshua J. Wodyga was convicted of one count of criminally negligent homicide in violation of AS 11.41.130 after he improperly used an air compressor to provide oxygen for himself and Levi Adams while they were diving. Carbon monoxide from Wodyga's air compressor killed Adams, who had contracted to use Wodyga's boat and equipment.
Wodyga and Adams were diving for sea cucumbers off of Wodyga's boat when both divers suffered from carbon monoxide poisoning. Wodyga surfaced immediately but Adams passed out due to the carbon monoxide poisoning and had to be pulled out of the water. Emergency workers arrived quickly and both men were transferred to a local hospital. Adams was pronounced dead of a combination of carbon monoxide poisoning and drowning. Wodyga made a full recovery.
Wodyga was subsequently charged with one count of manslaughter and one count of criminally negligent homicide. At trial, the State argued that Wodyga had been using equipment not suitable for diving — specifically, a compressor not designed to create breathable air, an air hose that was too narrow, the wrong type of oil for the compressor, and a poorly maintained filter. The State argued that these defects together led to the build-up of carbon monoxide, which ultimately killed Adams. A jury convicted Wodyga of criminally negligent homicide but acquitted him of the manslaughter charge.
AS 11.41.120 and AS 11.41.130, respectively.
Wodyga now appeals, arguing that there was insufficient evidence to support his criminally negligent homicide conviction, that the trial court erred by not giving the jury a factual unanimity instruction, and that a portion of the State's expert testimony should have been barred as speculative, irrelevant, and not in keeping with the Daubert/Coon standard. For the reasons explained in this opinion, we reject Wodyga's claims and affirm the judgment of the superior court.
State v. Coon, 974 P.2d 386, 394-98 (Alaska 1999) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-94 (1993)).
Underlying incident
Wodyga worked as a sea cucumber harvester in Ketchikan. Wodyga had been diving since he was a child and earned his diving certification in 2011.
Wodyga met Adams when Wodyga's sister referred Adams to Wodyga. Wodyga and Adams agreed that Adams would act as a second diver on Wodyga's boat, using Wodyga's equipment but working under his own permit. In return, Wodyga would get thirty percent of Adams's profits.
Adams had only recently been certified; he had forty to fifty hours of diving experience and had never dived in Alaska. The type of diving Adams had previously done was supplied-air diving, which was different than the "hooka" diving he was to do with Wodyga, where the diver is tied to the boat and receives air through a hose attached to an air compressor on the boat.
Because of Adams's relative inexperience, when Adams and Wodyga first dove together, Wodyga gave Adams verbal training and showed him how to operate the equipment. Adams's own gear — a mask and wetsuit — were brand new, but otherwise he was using Wodyga's equipment.
During their first day of diving together, Wodyga spent around two hours watching Adams to ensure he was okay. Wodyga was in the water for about six hours that day, while Adams was in the water around three and a half or four hours. During the dive, Adams lost a fin and his lead belt. After the dive, he asked Wodyga to again walk him through how to use the equipment.
After the dive, Wodyga noticed that "the compressor was sputtering a little bit." Wodyga opened up the compressor, and he found "a little bit of water dumping around." He poured out the water and used a shop vacuum to clean the tank.
The next day, Adams and Wodyga went diving again. Before they went in, Wodyga again double-checked with Adams to ensure he was familiar and comfortable with the gear. And although he had concerns that the compressor was "acting funny," Wodyga used the same compressor to provide air for both himself and Adams.
For the first couple of hours, there was no indication that anything was wrong with the equipment. But after moving to a new location, Wodyga tasted bad air and surfaced. He felt lightheaded and yelled for his deck hand, who helped him into the boat. When he saw that Adams had not come up as well, Wodyga told his deck hand to pull Adams in.
When they got Adams into the boat, Adams was unconscious. They called 911 and began chest compressions, and a significant amount of water came out of Adams's lungs. Attempts to revive Adams were unsuccessful. Adams was transported to the local hospital where he was treated for half an hour before being pronounced dead. Wodyga was also transported to the hospital and treated for carbon monoxide poisoning.
Later tests revealed that Adams died of a combination of carbon monoxide poisoning and drowning. It was undisputed that the compressor and hose used to supply air to Adams were Wodyga's, and it was Wodyga's responsibility to perform maintenance on that equipment. Wodyga was subsequently charged with one count of manslaughter and one count of criminally negligent homicide.
AS 11.41.120 and AS 11.41.130, respectively.
At trial, the State argued to the jury that the narrow hose and the unsuitability of the compressor caused the compressor to overheat, burning carbon deposits (which were caused in part by the use of improper oil and a poorly maintained filter) and producing the carbon monoxide that led to Adams's death. For his part, Wodyga argued that Adams's death was an unforeseeable accident. The jury ultimately acquitted Wodyga of the manslaughter charge but convicted him of criminally negligent homicide.
Wodyga now appeals.
Issues on appeal
Wodyga raises three issues on appeal. First, Wodyga challenges the sufficiency of the evidence presented, contending that the State failed to prove that any of the factors it focused on — the compressor, hose, oil, or filter — actually caused the build-up of carbon monoxide. Wodyga contends that his actions did not give rise to any risk of death at all, much less a substantial and unjustifiable risk.
Second, Wodyga argues that the trial court erred in failing to instruct the jury that the jurors had to unanimously agree on what specific acts of negligence led to Adams's death. Wodyga contends that the State presented multiple theories involving multiple distinct acts and that the jury should have been required to unanimously accept one of the State's theories and to unanimously agree on which single act caused Adams's death.
Finally, Wodyga argues that the trial court committed plain error in permitting the State to offer expert testimony that the filter was a "soggy mess." Although Wodyga concedes that this error was not preserved, he maintains that it was plain error for the trial court to allow this testimony because it was irrelevant, confusing, and overly speculative.
Sufficiency of the evidence
When reviewing sufficiency of the evidence claims, an appellate court "view[s] the evidence in the light most favorable to the verdict and asks whether a reasonable juror could have concluded that the defendant was guilty beyond a reasonable doubt." We "consider only those facts in the record most favorable to the verdict and such reasonable inferences as a jury may have drawn from those facts." The evidence is sufficient "if any reasonable juror could have concluded that the defendant was guilty beyond a reasonable doubt."
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009).
Id.
To convict Wodyga of criminally negligent homicide, the jury was required to find that Wodyga, with criminal negligence, caused Adams's death. A person acts with "criminal negligence" if "the person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists; the risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation."
See AS 11.41.130(a).
AS 11.81.900(a)(4). The jury instruction on criminal negligence for Wodyga's case mirrored this statutory language.
On appeal, Wodyga does not challenge the jury's conclusion that his conduct caused Adams's death. He does not dispute that Adams died while diving from Wodyga's boat, that Adams's cause of death was drowning due to carbon monoxide poisoning, or that the carbon monoxide came from his air compressor. Instead, Wodyga argues that Adams's death was an unforeseeable accident. Wodyga attributes the jury's decision to hindsight bias, and he frames the State's case as three separate, unrelated theories that he attempts to debunk one by one.
Hindsight bias is "the recognized tendency for individuals to overestimate or exaggerate the predictability of events after they have occurred." Chavez v. City of Los Angeles, 224 P.3d 41, 52 (Cal. 2010).
Wodyga contends that there was insufficient evidence that his actions gave rise to a "substantial and unjustifiable" risk of death because the possibility of death was not a likely outcome. That is, he claims that the evidence did not establish that death was so likely an outcome that his actions were a "gross deviation from the standard of conduct that a reasonable person would observe in the situation."
Schlosser v. State, 372 P.3d 272, 275-76 (Alaska App. 2016).
At trial, the State presented evidence that much of the equipment Wodyga used was faulty or should not have been used in the manner in which he used it, that Wodyga knew about these issues, and that the equipment failure was the cause of Adams's death.
The State's argument focused on four pieces of Wodyga's equipment that it maintained led to the build-up of carbon monoxide: (1) a shop compressor not designed for creating breathable air, (2) a too-narrow hose, (3) vegetable oil rather than synthetic oil, and (4) a filter that was not maintained.
The evidence at trial showed that all compressors manufacture air, but not all compressors are designed for diving. While compressors specifically used for diving are designed to deliver breathable air, the compressor Wodyga used was designed to deliver air that will operate pneumatic tools, such as nail guns.
Wodyga's compressor had smaller tanks than compressors that are specifically used for diving. A compressor with a smaller tank must work harder to produce the same volume of air. The harder a compressor works, the more heat it generates, which can lead to a build-up of hydrocarbons. The State's expert, Allen Alloway (a diver with twenty years of experience), testified that although Wodyga's compressor was serviceable in the sense that it would run and make air, Alloway himself "would not dive [with] that compressor . . . nor would [he] let one of [his] students."
In this case, Wodyga was aware that his compressor was not designed for manufacturing breathable air. The compressor displayed a warning against the precise result of Wodyga's actions: not only that death could result, but that death could result because of carbon monoxide in the air supply. And in an interview with the Coast Guard, Wodyga admitted, "[W]hat we do voids the manufacturer warranty on the equipment because none of these compressors are specifically built — certified for air supply."
The warning stated: "Danger! NEVER breathe compressed air, it can contain carbon monoxide or other contaminants. Will cause serious injury or death."
Despite this, the jury heard evidence that pneumatic compressors, or shop compressors, like the one Wodyga used, are commonly used by "hooka" divers. Alloway testified that dive compressors are "not as common as the shop compressors" in the industry.
Wodyga argues that the wide use of shop compressors in the industry is evidence that his use of a shop compressor was not a gross deviation from the standard of conduct that a reasonable person would observe. But the fact that others within the Ketchikan dive industry might use similar compressors does not excuse Wodyga from accountability. Moreover, the evidence of criminal negligence came from the totality of the circumstances in which he chose to provide air to Adams; the type of compressor he used was just one of these circumstances.
In addition to evidence about the compressor, the State also presented evidence that the hose Wodyga used was too small in diameter for its purpose, which also could have caused the compressor to overheat. Wodyga's hose was about ¾ inches in diameter, as opposed to the 1½ inch hose Alloway typically used. Alloway testified that the diameter of the hose affected how hard the compressor had to work to produce air. With a smaller hose, the compressor would have to work harder to provide the same volume of air. That in turn would cause the compressor to run hotter, contributing to the build-up of carbon monoxide.
To support its claim that Wodyga's conduct was a gross deviation from the conduct that a reasonable person would observe, the State relied not only on Wodyga's use of a shop compressor and too-narrow hose, but also on Wodyga's use of vegetable oil rather than synthetic oil to lubricate the air compressor.
Without oil, a compressor will seize up. However, because oil produces particulates and hydrocarbons which will end up in the breathing system, it is important for divers to use food-grade oil rather than fossil-fuel grade oil. A synthetic food-grade oil specifically designed for dive compressors is widely available, but divers frequently substitute vegetable oil, another food-grade oil, because vegetable oil is much cheaper.
Unlike synthetic oil, vegetable oil is not designed for the level of heat the compressor creates. As a result, when used to lubricate a compressor, it will break down, causing hydrocarbon build-up and leading to carbon deposits. With enough heat these deposits will burn, creating carbon monoxide.
After Adams's death, both Wodyga and the Coast Guard found burnt oil on Wodyga's compressor. In his interview with the Coast Guard, Wodyga admitted that although it was better to use synthetic food-grade oil, he used vegetable oil periodically to save money.
The State also presented evidence that Wodyga failed to adequately maintain his filter, arguing that this contributed to the build-up of carbon monoxide. Alloway examined the outside of the filter and collected a portion of the condensation that had built up inside it. Although he did not disassemble the filter, based on his examination of the rusted bolts securing the cap, Alloway concluded that the filter had not been changed for quite some time. Further, a large amount of water came out of the filter, and Alloway saw "a great deal of condensate in the filter's wall." Alloway testified that although all filters will contain moisture, the water from this one contained "a lot of contaminants and rust." If the filter was dirty, "it couldn't filter out the contaminants." Alloway concluded that the filter was not serviceable.
While no filter can remove carbon monoxide, Alloway testified at trial that a functioning filter removes hydrocarbons. As a result, a functioning filter would help prevent the formation of carbon. And, without carbon, carbon monoxide will not form.
Wodyga argues that Alloway's opinion about the condition of the filter was based on speculation because he did not open the filter to examine it. While it is true that Alloway did not open the filter, the jury was fully aware of this fact. Further, the State's argument that the filter was faulty was based primarily on the rust and debris which came out of it. Because of the debris, Alloway concluded that the filter had been poorly maintained. A reasonable jury could have found this was sufficient to show the filter was not functioning.
Wodyga also argues that because the filter was an output filter, the condition of the filter did not contribute to Adams's death. But this argument ignores a large portion of the State's evidence. While parts of Alloway's testimony indicated that the dirty filter was an output filter, he also testified that the filter was important in preventing the build-up of hydrocarbons.
Viewing the evidence in the light most favorable to upholding the verdict, we find that the evidence was sufficient to convict Wodyga. The jury could reasonably conclude that Adams's death was a foreseeable result of supplying air to him via a shop compressor with a poorly maintained filter and a too-narrow hose, using vegetable oil as a lubricant. The jury could conclude that these circumstances created increased heat and stress that transformed the accumulated hydrocarbons into carbon monoxide.
Wodyga's compressor contained a specific warning that breathing air created by the compressor could cause death, and Wodyga knew that his use of the compressor voided the warranty "because none of these compressors are specifically built — certified for air supply." We conclude that the evidence was sufficient to prove beyond a reasonable doubt that Wodyga's actions were a gross deviation from the standard of conduct that a reasonable person would observe in the situation.
Factual unanimity
Wodyga's next argument on appeal is that the court should have given the jury a factual unanimity instruction. Although Wodyga did not request a factual unanimity instruction at trial, he now argues that the lack of such an instruction requires reversal because the jury could have found that he committed one or more different acts that contributed to Adams's death. Wodyga contends that the jury was required to agree on which specific act of negligence led to Adams's death.
An "accused has a right to a unanimous verdict: a conviction may properly be entered only if the jury unanimously finds that all essential elements of the offense charged were proved beyond a reasonable doubt." Thus, all jurors must agree that the defendant committed a single offense. Where one jury instruction may encompass two separate incidents, the trial judge must instruct the jury that if a guilty verdict is returned, the jurors must be unanimous as to the incident or incidents of which they find the defendant guilty.
Covington v. State, 703 P.2d 436, 440 (Alaska App. 1985).
State v. James, 698 P.2d 1161, 1167 (Alaska 1985).
Id. at 1166.
In other words, factual unanimity is an issue when the State presents evidence of several discrete acts, any one of which could constitute the offense charged. But it is not an issue when there is only one criminal act alleged and only one incident involved.
Id. at 1166-67.
In this case, Wodyga's actions did not support convictions for more than one offense of criminally negligent homicide. Rather, Wodyga was accused of a single incident that the State alleged caused Adams's death.
Additionally, Wodyga's actions were not in dispute at trial. Wodyga conceded that the compressor was not designed for providing breathable air and that the way he used it voided the warranty; he acknowledged that he had used vegetable oil as a lubricant instead of synthetic dive oil; he acknowledged that he had not changed the oil in six months, even though he should have changed the oil "[a]ll the time" when using vegetable oil as a "back-up"; and he admitted that the compressor was "sputtering" the night before Adams's death. Furthermore, Wodyga admitted that all the equipment — including the compressor, hose, and filter — was his and that he had used all of this equipment on the day in question. And Wodyga admitted that his compressor created the carbon monoxide that killed Adams.
The dispute at trial, then, was not about what Wodyga did or did not do; instead, the jury was asked to resolve whether Wodyga's actions constituted "a gross deviation from the standard of care that a reasonable person would observe in the situation." Given the issues left for the jury's consideration, and the way the case was litigated, we find no error in the trial court's failure to give a unanimity instruction.
See AS 11.81.900(a)(4).
Expert testimony
During his testimony, the State's expert, Allen Alloway, described Wodyga's filter as "a soggy mess." This phrase was repeated at three points during the trial. Wodyga did not object to any of these references, but now argues on appeal that it was plain error for the superior court to allow such testimony.
First, when prompted by the State, Alloway guessed that the filter would be a "soggy mess":
Prosecutor: Okay. And I think that you said in your grand jury testimony — you described it as a soggy mess.Later, during cross-examination, the defense attorney repeated the "soggy mess" phrasing, though Alloway did not:
Alloway: I said that the filter would probably be a soggy mess with that much moisture and that much contaminant coming out of it. There again, that's an educated guess. I obviously have not taken it apart to see it. But if you're a sporting man, I'd be willing to wager you that it is a soggy mess. Yes, sir.
Defense: Now you talked about to the grand jury, and you mentioned here, that this filter is probably a soggy mess on the inside because you withdrew four ounces of water.The State then reiterated this phrase during its closing:
Prosecutor: This is one of the devices in this — I'll call it cowboy setup — that is supposed to be saving divers, and it clearly has not been maintained. And the drain condensate indicates that . . . what's inside of it is a soggy mess, as Mr. Alloway described it. The serviceability is in question.
Wodyga concedes that he did not object to any of these references at trial. However, he now claims that the trial court committed plain error in allowing the State's witness to use the phrase "soggy mess," contending that it was irrelevant, confusing, and overly speculative. Primarily, he argues that the testimony should have been excluded because it would not pass the rigors of a Daubert/Coon analysis.
State v. Coon, 974 P.2d 386, 395 (Alaska 1999) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94 (1993)).
To show plain error, a defendant must show that the error "(1) was not the result of intelligent waiver or a tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial."
Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
For plain error to apply, the error must be "so obvious that the trial court should have noticed despite the absence of an objection." In this case, we are not convinced that allowing the use of this phrase was error at all, let alone obvious error.
Adams, 261 P.3d at 772.
Wodyga argues that the trial court erred by allowing Alloway's testimony about the filter because the testimony would not satisfy the requirements of a Daubert/Coon analysis. But in Alaska, this standard applies only to scientific evidence; it does not apply to all expert testimony. The Alaska Supreme Court expressly declined to extend the Daubert/Coon standard to non-scientific testimony and held that "other technical or specialized knowledge" that is "derived only from experts' personal experience and intuition" and is "not empirically verifiable or objectively testable" is not subject to Daubert/Coon. Rather, such testimony is admissible if "the expert witness has substantial experience in the relevant field and the testimony might help the jury."
See Marron v. Stromstad, 123 P.3d 992, 1003-07 (Alaska 2005) (limiting the Daubert standard's applicability to expert testimony based on scientific theory).
Id. at 1006.
Thompson v. Cooper, 290 P.3d 393, 399 (Alaska 2012) (internal quotations omitted).
Because Alloway's testimony was based on his twenty years of experience in the field of diving rather than scientific process, it was not subject to a Daubert/Coon analysis. Alloway's observations that the bolts of the filter were rusted shut (indicating that it had not been changed for a significant period of time), that a large amount of water came out of the filter when he examined it, and that this water contained rust and other contaminants (indicating that the filter was not functioning properly), were sufficient to form the basis of his opinion.
In addition to his Daubert/Coon claim, Wodyga argues that Alloway's testimony was irrelevant and overly speculative. We disagree.
Alaska Rule of Evidence 401 provides that evidence is relevant if it has the "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." At trial, the State continually advanced the theory that the filter contributed to the build-up of hydrocarbons, which in turn contributed to the build-up of carbon monoxide. Evidence that the filter was in poor working condition therefore was relevant to whether it contributed to the build-up of carbon monoxide.
"To be admissible under our rules, evidence need not be 'directly relevant' to the fact that it seeks to establish." Here, Alloway's testimony was relevant to whether the filter was in working order, which in turn was relevant to whether the filter could have potentially contributed to the build-up of carbon monoxide, which impacted the likelihood that the State's theory as a whole was accurate. Therefore, Alloway's testimony on the condition of the filter was relevant.
Marsingill v. O'Malley, 128 P.3d 151, 158 (Alaska 2006).
Wodyga also argues that Alloway's testimony was overly speculative because the State had the opportunity to open up the filter and more fully examine it. But an assertion that the State has not conducted a thorough enough investigation will not generally make the evidence overly speculative. In fact, the supreme court has explained that while "a jury might have found that [the expert's] investigation, or the basis of his opinions, was insufficient, it was [the defendant's] responsibility to expose these weaknesses through cross-examination and the presentation of countervailing expert testimony."
Marron, 123 P.3d at 1009.
Wodyga was entitled to argue, and in fact did argue, that the State should have completed a more thorough examination of the filter. However, this alone does not make Alloway's testimony overly speculative. Rather this goes to how much weight the jury should have given to the evidence. The evidence was properly admitted, and the trial court's failure to exclude it was not an obvious error.
Wodyga has also failed to show that the alleged error affected his substantial rights. The supreme court has interpreted "affects substantial rights" to mean "that the alleged error must raise[ ] a substantial and important question such that a failure to address it could undermine the fundamental fairness of the trial and contribute to a miscarriage of justice." Here, Wodyga does not allege what rights were affected by Alloway's testimony or how allowing the use of the phrase "soggy mess" would undermine the fairness of his trial.
Adams v. State, 261 P.3d 758, 771 (Alaska 2011).
Finally, even if allowing testimony that used the phrase "soggy mess" was error, such testimony did not prejudice Wodyga. In fact, Alloway put the phrase into context immediately, noting, "that's an educated guess; I obviously have not taken [the filter] apart to see it." The jury was therefore aware of the limited value of Alloway's description.
The description that the filter was probably "a soggy mess" was only raised three times (including once by the defense), and each time only in passing. The "soggy mess" description did not materially differ from the overall points that Alloway made concerning the state of the filter, testimony tending to demonstrate that the filter was poorly maintained.
We therefore conclude that Alloway's testimony that the filter was probably "a soggy mess" was not impermissible. And even if it was, Wodyga has not shown that the failure to bar this testimony was plain error.
Conclusion
We reject Wodyga's claims of error. The judgment of the superior court is AFFIRMED.