Opinion
A-13708
09-28-2022
RALPH ILASA VAGANA, Appellant, v. STATE OF ALASKA, Appellee.
Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Alex Engeriser, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, Anchorage, Trial Court No. 3AN-19-03875 CR Andrew Peterson, Judge.
Appearances:
Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Alex Engeriser, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
Ralph Ilasa Vagana was convicted, following a jury trial, of third-degree recidivist assault for punching Brandon Lin in the eye at an Anchorage diner.
AS 11.41.220(a)(5). Vagana also pleaded guilty to one misdemeanor count of violating his conditions of release. AS 11.56.757(a).
On appeal, Vagana argues that the prosecutor improperly testified to his opinion during closing arguments to the jury. Specifically, the prosecutor played a clip of the diner's security footage that had previously been entered into evidence. While the video played, the prosecutor narrated Vagana's movements in the video and told the jury that, although it was difficult, "you actually can see the punch being thrown right there."
See, e.g., Patterson v. State, 1A1 P.2d 535, 538 (Alaska App. 1987) (noting that the ABA Standards for Criminal Justice "restrict[] argument to the evidence presented at trial and the inferences that may fairly be drawn therefrom" and "prohibit[] the prosecutor from expressing a personal belief as to the evidence").
Vagana's attorney obj ected, arguing that the video footage was unclear and that no witness had testified that they could see who threw the punch in the video. But the superior court overruled this objection, finding that the prosecutor was reasonably utilizing the evidence to make an argument to the jury and noting that the jurors could watch the video for themselves.
During trial, Lin testified that Vagana was the one who punched him during the scuffle at the diner, and he identified Vagana in the security video. An eyewitness corroborated Lin's testimony by stating that the assailant wore a red, black, and white jacket, which Lin attributed to Vagana. However, neither Lin nor the eyewitness could see the punch in the video itself.
We have reviewed the record in this case, and we agree with the superior court's ruling. We note that the jury was repeatedly told - by the court, by defense counsel, and by the prosecutor himself- that the prosecutor's closing statements were only arguments and were not to be taken as evidence. The court read an instruction to the jury specifically explaining that the attorneys' arguments "are not evidence" and "if the arguments depart from the facts or from the law, you should disregard them. . . . You are the ones to determine what weight to give to the evidence in this case, as well as what conclusions of fact to draw."
Vagana's attorney repeated this point in his closing remarks - submitting his own view that the video did not clearly show who threw the punch and reminding the jury that the prosecutor was not a witness to the incident nor was he an expert in forensic analysis. And the prosecutor told the jury, "[T]his is an argument. It's up to you to watch these videos. ... [T]hey're in evidence. ... You can determine what you see."
We therefore have little doubt that when the prosecutor told the jury that the video showed Vagana punching Lin, the jury understood that this was an argument for their consideration and not improper opinion testimony.
The judgment of the superior court is AFFIRMED.