Opinion
Court of Appeals No. A-12365 No. 6685
08-15-2018
IVAN I. BEREZYUK, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Elizabeth T. Burke, 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. Trial Court No. 3PA-14-1939 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa H. White, Judge. Appearances: Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard, Judge. Judge MANNHEIMER.
Ivan I. Berezyuk appeals his convictions for felony driving under the influence and improper use of vehicle registration. He raises three claims on appeal.
First, Berezyuk argues that the trial judge abused her discretion under Alaska Evidence Rule 403 when she allowed the prosecutor to introduce evidence of drug paraphernalia found in Berezyuk's vehicle during the traffic stop that led to his arrest.
The State's theory of the case was that Berezyuk was driving under the influence of a controlled substance, while Berezyuk's attorney contended that Berezyuk's problematic driving was attributable to his lack of sleep and, potentially, to the effects of a pre-existing brain injury. Given this, the judge did not abuse her discretion when she ruled that the probative value of the drug paraphernalia equaled or outweighed its potential for unfair prejudice.
Berezyuk's other two claims involve two jurors who each raised concerns to the trial judge during Berezyuk's trial.
The first of these jurors, A.C., alerted the judge on the first day of trial that she recognized one of the State's witnesses.
A.C. told the judge that she had not known this witness by name, but when he took the stand at Berezyuk's trial, she recognized him from her work at a gymnastics studio: he was the parent of one of the children who attended the studio, and A.C. would see him "maybe once a week" when he came to pick up his child.
A.C. said that she might exchange greetings with the witness, but that she otherwise had no acquaintance with him. And when A.C. was asked whether any of this would make any difference to her decision-making in Berezyuk's case, she answered, "Not at all."
Based on the foregoing, Berezyuk's attorney challenged Juror A.C. for cause. The judge denied this challenge.
On appeal, Berezyuk contends that the judge should have granted his attorney's mid-trial challenge to Juror A.C. In matters involving challenges to jurors, we employ the "abuse of discretion" standard of review when we evaluate the trial judge's ruling. Here, we find no abuse of discretion.
The second juror, R.K., informed the judge that his hearing aid had malfunctioned during the first morning of trial. R.K. told the judge that, during this malfunction, he had been able to hear the testimony of the witnesses, but he had experienced some difficulty hearing what the attorneys were saying on the occasions when they walked away from their microphones. R.K. also told the court that the problem had been solved, and that he could now hear the proceedings "real well."
When the judge asked R.K. whether, despite the hearing aid malfunction, he believed that he "got the sense of what was going on", R.K. answered, "Oh, yes."
Based on the foregoing, Berezyuk's attorney challenged Juror R.K. for cause. The judge denied this challenge.
On appeal, Berezyuk contends that the judge abused her discretion when she denied the mid-trial challenge to Juror R.K. Again, we find no abuse of discretion.
Because we conclude that none of Berezyuk's appellate claims have merit, the judgement of the superior court is AFFIRMED.
Nelson v. State, 68 P.3d 402, 406 (Alaska App. 2003).