Opinion
Court of Appeals No. A-12798 No. 6839
12-11-2019
EDUAR KLAY MORAN BONILLA, 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. RuthAnne B. Bergt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin Clarkson, 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. 1JU-15-00726 CR
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Juneau, Louis James Menendez, Judge. Appearances: Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. RuthAnne B. Bergt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin Clarkson, 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).
Eduar Klay Moran Bonilla, a Honduran citizen, was convicted by a jury of two counts of second-degree sexual assault for touching the breasts and vagina of C.W. On appeal, Bonilla first argues that the trial judge should have granted his mid-trial motion to dismiss one of the two counts or, in the alternative, his motion for an invited mistrial, which essentially asked the court for a dismissal based upon a claim of prosecutorial misconduct. Bonilla also challenges the judge's decision not to refer his case to the three-judge sentencing panel. For the reasons we explain here, we find no error and accordingly we affirm the trial court's judgment.
AS 11.41.420(a)(1).
At trial, C.W. testified that Bonilla touched her breasts without her consent (the conduct alleged in Count I). The prosecutor then asked a question that called for hearsay testimony. Specifically, the prosecutor asked C.W. whether she had testified at a previous proceeding that Bonilla touched her vagina (the conduct alleged in Count II). Bonilla objected, and C.W. did not answer the question. The trial judge sustained the hearsay objection. The judge then offered to issue a curative instruction, but Bonilla declined the court's invitation.
Bonilla instead moved for dismissal of Count II, arguing that the prosecutor's question showed a "blatant disregard for the rules of evidence" and that dismissal was necessary because the question went to "the core" of Count II. The trial court denied the motion. Bonilla then moved for a mistrial. After a court recess, Bonilla withdrew his motion for mistrial and instead moved for an "invited mistrial" — that is, a mistrial with further prosecution prohibited. The court denied this motion, finding that the prosecutor had not engaged in intentional misconduct. On appeal, Bonilla contends that the trial court erred in denying both his motion to dismiss Count II and his motion for invited mistrial.
See Piesik v. State, 572 P.2d 94, 96 (Alaska 1977); Torres v. State, 519 P.2d 788, 791 (Alaska 1974).
Alaska Criminal Rule 43(c) allows a court to dismiss a count "in the interest of justice." However, this Court has previously held that a dismissal in the furtherance of justice under Rule 43(c) is impermissible when ordered in response to state action that did not result in actual legal prejudice to the defendant.
State v. Jones, 751 P.2d 1379, 1382 (Alaska App. 1988); see also State v. Echols, 793 P.2d 1066, 1077 (Alaska App. 1990) (Bryner, C.J., with whom Singleton, J., joins, concurring) ("[T]he power to dismiss in furtherance of justice is meant to be used on a case-by-case basis as a remedy for actual unfairness suffered by the accused."); Schouten v. State, 77 P.3d 739, 741 (Alaska App. 2003) (dismissal was unwarranted where the State's inaction did not result in actual legal prejudice to the defendant).
At the time the prosecutor asked the question at issue in this case, C.W. had not yet described the nonconsensual touching of her vagina, but the jury was fully aware that this was the basis of Count II. The judge had read the charging documents to the jury, and the jury had heard the prosecutor's opening argument, both of which made it clear that Bonilla was charged with unlawful touching of C.W.'s genitals. As a result, the prosecutor's question, which C.W. did not answer, did not introduce any new information to the jury and created no prejudice to Bonilla.
In addition, because C.W. later testified that Bonilla touched her vagina and described that incident, the improper question did not prejudice Bonilla, and the prosecution did not benefit from asking it. Moreover, a curative instruction, which Bonilla declined in this case, is presumed to cure prejudice stemming from improper questioning. We therefore conclude that the trial court did not abuse its discretion in denying Bonilla's motion to dismiss.
Roth v. State, 626 P.2d 583, 585 (Alaska App. 1981).
As we have noted, Bonilla also appeals the denial of his motion for invited mistrial. Generally, when a trial is terminated on defendant's motion for a mistrial, double jeopardy does not preclude a retrial. But where prosecutorial misconduct is the basis for the defendant's motion, such misconduct may preclude further prosecution.
Piesik, 572 P.2d at 96.
Id.; see also Brandon v. State, 839 P.2d 400, 406 (Alaska App. 1992) (acknowledging that Alaska courts have left open the possibility that a defendant may prevail on double jeopardy grounds where the prosecution causes a mistrial through gross negligence).
In this case, the trial court found that there had been no intentional misconduct by the prosecutor. We have reviewed the record and conclude that this finding was not clearly erroneous. We see no error in the trial court's decision denying Bonilla's motion for "invited mistrial."
See Gilbreath v. Anchorage, 773 P.2d 218, 221 (Alaska App. 1989) (citing Esmailka v. State, 740 P.2d 466, 470 (Alaska App. 1987)).
Bonilla's final claim of error concerns the trial court's denial of his motion for referral of his case to the three-judge sentencing panel. In the motion, Bonilla asked the trial court to refer his case to the panel because manifest injustice would result from imposition of a sentence within the presumptive range. Bonilla argued that referral to the three-judge panel was necessary because it would be difficult or impossible for Bonilla to maintain contact with his family in Honduras while incarcerated, because his lack of fluency in English would cause incarceration to be more isolating, because he likely would be unable to work in the United States again, and because he likely would be deported.
See AS 12.55.165(a).
Alaska Statute 12.55.165(d) forbids referral to the three-judge panel where the request is based in whole or in part on a claim that a sentence may result in classification of the defendant as deportable under federal immigration law. Bonilla argued to the trial court that this statute did not apply to his case. The State did not file any responsive pleading, and the trial court did not rely on this statute in making its decision.
The trial court denied Bonilla's motion, finding that a sentence within the presumptive range would not be manifestly unjust — i.e., plainly unfair — as applied to Bonilla.
See Knipe v. State, 305 P.3d 359, 363 (Alaska App. 2013).
On appeal, Bonilla claims that the trial court considered each of the specific circumstances he identified in isolation rather than as a whole, and also failed to consider the Chaney criteria. But this claim is not supported by the record. In fact, the trial court judge expressly considered the totality of the circumstances in both his written order and in his oral findings at the time of sentencing. The judge engaged in a detailed analysis of the Chaney criteria at the sentencing hearing, and his written order denying Bonilla's motion shows that he considered the goals described by Chaney.
We have independently reviewed the record in this case, and we conclude that the trial court was not clearly mistaken when it declined to refer the case to the three-judge sentencing panel.
See Bossie v. State, 835 P.2d 1257, 1259 (Alaska App. 1992). --------
The judgment of the superior court is AFFIRMED.