Opinion
A-13757 0348
10-04-2023
DAVID CRAIG WARD SR., Appellant, v. STATE OF ALASKA, Appellee.
Justin N. Gillette, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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 No. 3AN-18-12496 CR, Anchorage, Andrew Peterson, Judge.
SUMMARY DISPOSITION
Justin N. Gillette, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, 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 Harbison, Judges.
David Craig Ward Sr. was convicted of second-degree sexual assault after he attacked his long-term romantic partner, T.T., and cut her labia with a pair of scissors. On appeal, Ward argues that the prosecutor made improper statements during the State's rebuttal closing argument. Because Ward's attorney did not object to the statements at trial, we review this claim for plain error.
See AS 11.41.420(a)(1). The jury also found Ward guilty of second-degree assault under AS 11.41.210(a)(1), but the counts merged.
Adams v. State, 261 P.3d 758, 764 (Alaska 2011) ("Plain error is an error that (1) was not the result of an intelligent waiver or a tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial.").
At trial, T.T. testified in an evasive manner, replying "maybe" or "I don't know" to many questions. When asked to describe her relationship with Ward, she "plead[ed] the fifth" and said she did not want to talk about it. The court granted the State permission to treat T.T. as a hostile witness.
In his defense, Ward testified that T.T. had recently been fired from her job, and he was frustrated with her minimal effort to find a new one. He stated that he told T.T. she would have to find her own place to live if she did not get a job "and help support [her] daughter." Ward testified that, during a later conversation between Ward and T.T., he again raised the issue, and in response, T.T. "went storm" and began "hollering and screaming." Ward claimed that he did not cut T.T.'s labia and suggested instead that she had cut her own labia when she took a shower.
During closing arguments, Ward's defense attorney argued that the jury should credit Ward's testimony about the incident and disbelieve T.T. The attorney argued that T.T. was not credible because her behavior on the witness stand was "crazy." The attorney repeated Ward's version of events that T.T. "went nuts" when Ward told her she needed to find somewhere else to live if she continued to resist finding another job. The attorney argued that T.T. cut herself, and that "to label [T.T] the victim here . . . would cheapen those who are truly victims."
In the State's rebuttal, the prosecutor asserted that "[t]his case isn't about [T.T.]. It isn't about whether you think she's a good or bad mother. It isn't about whether you think she's a great witness." The prosecutor told the jury that, rather, the case was about "the hell that [Ward] put that woman through." The prosecutor claimed that the defense's trial strategy was to persuade the jurors to dislike T.T., asserting that if the jury believed that T.T. was "worthless," the jury would not care whether she had been physically and sexually assaulted. The prosecutor argued that no one is worthless or deserves to be hurt.
On appeal, Ward argues that the prosecutor's comments were improper because they mischaracterized the defense attorney's arguments. Ward also argues that the prosecutor's assertion that no human being is worthless or deserves to be hurt was an appeal to emotion, not an argument based on the evidence or a response to defense counsel's claim that T.T. should not be believed. The State argues that the prosecutor's statements were fair comments in response to the defense attorney's arguments.
See Hess v. State, 435 P.3d 876, 881 (Alaska 2018) (holding that a prosecutor's closing argument was improper when it attacked the defense attorney and accused defense counsel of vilifying the victim).
See Patterson v. State, 747 P.2d 535, 538 (Alaska App. 1987) (noting that prosecutors are prohibited from "making appeals calculated to inflame [the] passions and prejudices of the jury").
We conclude that we need not resolve this question because we are persuaded that any error was harmless. The prosecutor's comments were brief and comprised a small part of an otherwise unobjectionable closing argument. Additionally, the State presented strong evidence of Ward's guilt at trial: T.T. provided a detailed interview to the police shortly after the incident, and her story was corroborated by the testimony of her daughter, DNA evidence, and a forensic medical examination documenting her injuries. For these reasons, we conclude that the challenged remarks did not have a reasonable probability of affecting the outcome of the trial, and we find no plain error.
See Hess, 435 P.3d at 881 ("'An error that is not constitutional in nature will be prejudicial if the defendant proves that there is a reasonable probability that it affected the outcome of the proceeding.'" (quoting Adams, 261 P.3d at 773)). We note that Ward does not argue the alleged error was constitutional in nature.
The judgment of the superior court is AFFIRMED.