Opinion
A-14005 0360
03-06-2024
JASON NEIL DOWNARD, Appellant, v. STATE OF ALASKA, Appellee.
Megan R. Webb, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Elizabeth T. Burke, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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 Superior Court, Third Judicial District, Homer, Bride Seifert, Judge Trial Court No. 3HO-19-00121 CI.
Megan R. Webb, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Elizabeth T. Burke, 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.
SUMMARY DISPOSITION
Jason Neil Downard was convicted of first-degree sexual assault and second-degree assault after he beat, strangled, and raped a woman while at a cousin's house. Downard testified at trial that he never had sex with the victim and that he fell asleep a few minutes after entering one of the bedrooms in his cousin's house. According to Downard, he woke up sometime later to a person touching him and thought he was being attacked, so he responded by punching the person for about fifteen seconds. The jury rejected this defense, and this Court affirmed Downard's convictions on direct appeal.
AS 11.41.410(a)(1) and AS 11.41.210(a)(1), respectively.
Downard v. State, 2017 WL 5508491 (Alaska App. Nov. 15, 2017) (unpublished).
Downard then filed an application for post-conviction relief, arguing that his trial attorney was ineffective for failing to procure two witnesses, Michelle Traughber and John Yanik, who were at the house on the night in question. Downard presented affidavits from Traughber and Yanik asserting that they saw Downard and the victim flirting earlier in the night and that any sexual contact "could" have been consensual. Downard also presented an affidavit from the investigator working on his post-conviction case, who was able to locate Traughber and Yanik and obtain their affidavits.
The superior court dismissed Downard's application, concluding that he had failed to establish a prima facie case that his attorney was incompetent and that he was prejudiced. Downard now appeals. We have reviewed the record and we conclude that Downard's application was properly dismissed.
Risher v. State, 523 P.2d 421, 425 (Alaska 1974) (holding that to succeed on a claim of ineffective assistance of counsel, an applicant must demonstrate that their attorney was incompetent and that this incompetence caused them prejudice).
See David v State, 372 P.3d 265, 269 (Alaska App. 2016) (explaining that an appellate court reviews de novo the superior court's decision on whether an application for post-conviction relief set forth a prima facie case for relief).
With respect to competence, it was not enough, as the superior court noted, for Downard to demonstrate "that his trial counsel could have done things better"; he was required to demonstrate that "no competent attorney would have done things as badly as his trial counsel did." Here, Downard's trial attorney and the assigned investigator made considerable efforts to subpoena Traughber and Yanik for trial, including searching for them in various databases, calling their relatives, and leaving multiple voicemails. We agree with the superior court that these efforts were at least minimally competent under the circumstances. We also agree with the superior court that an investigator's "ability to quickly locate Traughber and Yanik in 2020 does not necessarily relate to the ease of which they could have been located in the 2010 and 2011 trial years."
See Tucker v. State, 892 P.2d 832, 835 (Alaska App. 1995).
See Allen v. State, 153 P.3d 1019, 1026 (Alaska App. 2007) (concluding that the fact that a later investigator was able to find witnesses did not mean the trial investigator was incompetent).
With respect to prejudice, we agree with the superior court that even if Downard's trial attorney acted incompetently, there was no reasonable possibility that the outcome of the trial would have been different. As the State argues on appeal, Traughber and Yanik did not observe what occurred in the bedroom and thus would not have been permitted to testify that they believed sexual contact "could" have been consensual. Furthermore, such testimony, even if admissible, would have contradicted Downard's testimony at trial that he never had sex with the victim. It would also be inconsistent with the evidence at trial, which established that the victim entered the bedroom with Downard and suffered significant injuries across her face, upper body, and vaginal walls. We therefore agree with the superior court that there is no reasonable possibility that Traughber's and Yanik's testimonies would have changed the outcome of the trial.
See Risher, 523 P.2d at 425.
See Alaska R. Evid. 701 ("If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue.").
The judgment of the superior court is AFFIRMED.