Opinion
A-12989
09-21-2022
ASAD A. NUR, Appellant, v. STATE OF ALASKA, Appellee.
Rex Lamont Butler, Rex Lamont Butler & Associates, Inc., Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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-16-08744 CR Kevin M. Saxby, Judge.
Rex Lamont Butler, Rex Lamont Butler & Associates, Inc., Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
MEMORANDUM OPINION
WOLLENBERG JUDGE
Following a trial, a jury found Asad A. Nur guilty of first-degree sexual assault and second-degree assault arising from an incident involving D.M. The court later merged the counts into a single conviction for first-degree sexual assault.
AS 11.41.410(a)(1) and AS 11.41.210(a)(1), respectively.
On appeal, Nur raises several claims. First, Nur argues that the trial court erred in precluding him from inquiring into the fact that D.M. had made prior accusations of sexual assault. Second, Nur argues that the court abused its discretion in allowing the State to introduce at trial a recording of certain statements that he made at his arraignment. Third, Nur contends that the court erred in denying his motion for a mistrial after D.M. referenced the fact that Nur was in jail at the time of the arraignment. Finally, Nur challenges the sufficiency of the evidence to support the jury's verdict on second-degree assault, and he argues (alternatively, in the case of the second-degree assault charge) that the trial court abused its discretion in denying his motion for a new trial on both counts.
Having reviewed the trial court proceedings, we reject Nur's claims and affirm his convictions.
Background facts and prior proceedings
In the early morning of September 6,2014, a taxi responded to a call from an Anchorage apartment building, where a man and a woman were waiting for the taxi to arrive. The man gave the woman money for the taxi fare, pushed the woman into the car, and slammed the door. According to the taxi driver, the woman, D.M., was "crying" and "very emotional," and as soon as she got into the cab, she told the driver that the man - who had told her his name was "John" - had raped her. D.M. and the taxi driver then called the police while en route to her destination, the Time Out Lounge.
When the police arrived at the Time Out Lounge, they contacted D.M. inside the bar and recorded their conversation with her. Although D.M., who was intoxicated, had trouble communicating with the responding officers, she reported that she had been raped and that the man had choked her. In particular, D.M. told the officers that the man had approached her at a different bar, offered to go with her in a taxi to the Time Out Lounge, but instead took her to a liquor store and his apartment, where he sexually assaulted her. D.M. pulled at her clothes and put her hand around her neck to demonstrate how the man had choked her. Eventually, D.M. agreed to be taken to the hospital.
Later that morning, D.M. underwent a sexual assault response team(SART) examination, in which she more fully described the incident to a multi-disciplinary team that included Anchorage Police Detective Jade Baker. During the forensic interview with Detective Baker, which was recorded, D.M. reported that she had gone back to the man's apartment for a drink-and the man had pulled her into the bedroom, pushed her down on the bed, and pulled her pants and underwear down. D.M. recounted that she had protested, repeatedly saying "no" and "I don't want to." She told Baker that the man then inserted his penis into her vagina, and he put his hand on her neck and applied pressure to overcome her resistance. D.M. reported that the man had sex with her for about five minutes and ejaculated inside of her.
During the subsequent medical examination, the forensic nurse documented bruises on D.M.' s neck, arms, and legs, and conducted a vaginal swab of D.M. for DNA. The swab was sent to the state crime lab for DNA analysis.
The police initially investigated a suspect who fit the description provided by D.M. and lived in the apartment building where the taxi had picked up D.M. But this suspect was excluded by DNA testing, and the case went cold, since D.M. did not know the suspect's real name.
Almost a year later, the federal DNA database reported a match to the DNA that had been collected from D.M. Based on this match, Detective Baker contacted Asad Nur, who lived next door to the original suspect. Baker interviewed Nur twice. During both interviews, Nur repeatedly denied knowing or having sex with D.M., but he agreed to provide a DNA sample for comparison to the DNA found on the vaginal swab. This DNA analysis indicated that Nur was the source of the sperm found in D.M.'s vagina.
A grand jury subsequently indicted Nur on one count of first-degree sexual assault and one count of second-degree assault - i.e., intentionally causing physical injury to another person by means of a dangerous instrument, his hand. At trial, the State mainly relied on recordings of D.M.'s statements to the police on the night of the incident and her forensic interview the following morning, as D.M. was unable to recall many details of the assault. D.M. did testify that she did not want to have sex with Nur, and that Nur used force to overcome her resistance.
Nur's attorney conceded that Nur had engaged in sexual penetration with D.M., but he argued that it was consensual. A jury found Nur guilty of both offenses.
Nur now appeals.
The court did not abuse its discretion in precluding inquiry into D.M. 's prior accusations of sexual assault
During cross-examination of D.M. at trial, Nur's attorney sought to elicit the fact that, during her SART examination, D.M. stated that she had been sexually assaulted in the past, and that she was dissatisfied with the police response on those occasions. In response to the State's objection, defense counsel presented a number of theories of relevance, many of which were unclear and not fully developed. In particular, the attorney argued broadly that D.M.'s prior assault allegations demonstrated her "knowledge of how the SART system works," and that she had a motive to fabricate the allegations in this case. In addition, despite acknowledging that it was unclear whether the prior allegations were true or not, the attorney argued that the evidence was relevant to assessing D.M.'s credibility in this case.
The court denied Nur's request under Alaska Evidence Rules 402 and 403, finding the line of inquiry not particularly relevant and more prejudicial than probative:
I don't see the relevance, I'm sorry. So, if there is a measure of probity here,... in my assessment, it is very small. And the chance for juror confusion is greater because I'm still confused as to what the point of the evidence is, and I think . . . some of the jurors, at least, are likely to be quite confused.
After the State rested its case-in-chief, defense counsel renewed his objection to the court's order, arguing that the State opened the door to the evidence by questioning D.M. about the invasiveness of the SART examination in this case. The court ruled that Nur could present evidence that D.M. had undergone a SART examination in the past to counter the State's argument that D.M. would not have undergone the trauma of a SART examination if she were lying. The court offered Nur the opportunity to examine the investigating officer outside the presence of the jury to establish that D.M. had, in fact, previously undergone a SART examination in connection with one of the earlier, unrelated investigations.
In response to this ruling, the State submitted to the court, under seal, a compact disc containing the police reports associated with D.M.'s prior accusations of sexual assault. (The prosecutor stated that he had not viewed the documents himself, nor had he provided a copy to Nur.) The court reviewed the reports and provided a summary to the parties: D.M. had made two prior allegations of sexual assault. In one instance, D.M. had declined to undergo a SART examination. In the second instance, a SART examination had occurred and DNA was collected, but no suspect had yet been identified. The court identified the second case as "a cold case, not a closed case."
Nur's attorney then argued that the evidence that D.M. had made past accusations of sexual assault was also relevant to show that the detective's investigation into D.M.'s background was incomplete. The attorney specifically disclaimed any argument that D.M.'s prior allegations were false - stating that he did not know if he could prove that the allegations were false, and later, that he was not trying to establish that "she's made false allegations." But he contended that, if the detective had failed to look into the prior allegations at all, that fact would reflect negatively on the thoroughness of his investigation.
Given this argument, the court allowed Nur to question the detective outside the presence of the jury as to whether he had investigated the possibility that D.M. had made a prior false report to the police. But the court excluded evidence of D.M.'s past sexual assault allegations themselves and the fact that the police had not pursued charges with respect to those allegations. The court noted that it was clear from the police reports that the police did follow up on the past allegations and found them to be credible.
Ultimately, Nur's attorney declined to ask the detective about the prior SART examination or whether he had investigated D.M.'s prior police contacts.
On appeal, Nur renews his argument that the court unduly limited the scope of his inquiry into D.M.'s prior accusations of sexual assault. Nur acknowledges that "[t]he truth or falsity of [D.M.'s] prior allegations was not at issue," so this case does not present a question of admissibility under Morgan v. State. Rather, Nur offers additional theories of relevance.
Morgan v. State, 54 P.3d 332, 336 (Alaska App. 2002) (holding that in a sexual assault prosecution, a defendant may seek to introduce evidence of a complaining witness's prior knowingly false accusation of sexual misconduct in order to challenge the witness's credibility with respect to the current accusation).
See, e.g., Bienek v. State, 2021 WL 2692166, at *9 (Alaska App. June 30, 2021) (unpublished) (recognizing that evidence of a past accusation that fell short of the Morgan standard might be admissible under a different evidentiary theory).
When we review a trial court's decision to exclude evidence, we apply an abuse of discretion standard. Here, Nur's attorney did not present well-developed theories of relevance in the trial court. On appeal, Nur also fails to articulate his additional theories of relevance in any detail. Instead, Nur argues generally that inquiry into D.M.'s prior sexual assault allegations was relevant to show that D.M. "was knowledgeable about the system" and "had a motive and the knowledge to tailor the claims she was making against Nur" since (according to Nur) the police had not believed her prior allegations. But the record does not show that the police failed to previously believe D.M., nor has Nur offered any explanation for why D.M. would have been motivated to fabricate a sexual assault claim against him.
Smithart v. State, 988 P.2d 583, 586 (Alaska 1999).
Moreover, the trial court allowed Nur to present evidence that D.M. had previously undergone a SART examination unrelated to this case, and according to the police records, D.M.' s prior allegations never progressed beyond that stage. In addition, the court allowed Nur to question the detective about whether he had investigated prior reports by D.M., but Nur declined to do so.
Having reviewed the record, we conclude that, given Nur's arguments, the court did not abuse its discretion in limiting the scope of Nur's inquiry into D.M.'s prior sexual assault allegations.
Nur also argues that the trial court should have given him access to the police records regarding the prior allegations, which the trial court reviewed in camera. The court ruled that Nur was essentially requesting "midtrial discovery" and that based on the court's review of the materials, there was no indication, or any fair argument to be made, that the police had "disbelieved [D.M.] in the past or haven't taken her seriously or view her as not a very credible reporter of rape allegations or anything along those lines." For these reasons, the court declined to disclose the prior reports.
We question the court's refusal to provide access to the police reports, especially once the court ruled that Nur could question D.M. about some aspects of the earlier incidents. But despite having the SART examination report, which contained reference to D.M.'s prior sexual assault allegations, defense counsel apparently did not request discovery related to the prior accusations until after the State had rested its case.
Moreover, we have reviewed the sealed records, and we agree with the court's description of the materials and the conclusions it drew. We therefore conclude that any error in failing to release the materials to the parties was harmless.
Any error in admitting Nur's statements from his arraignment was harmless
Nur next argues that the superior court erred in permitting the State to introduce at trial a recording of certain statements he made at his arraignment in this case. Nur argues that the statements were not relevant and that any marginal relevance was outweighed by the danger of unfair prejudice and confusion.
Alaska R. Evid. 402 and 403.
This issue arose prior to D.M.'s testimony at trial, when the prosecutor announced his intention to play a portion of Nur's statements from his arraignment. In particular, the prosecutor wished to play a portion of the arraignment in which Nur responded to D.M.'s assertion that he was "a very dangerous man" and that she was "scared." Nur responded by laughing, and claiming that D.M. was lying and he did not know her. Here is Nur's response that the State sought to (and ultimately did) introduce, as transcribed for this appeal:
(Indiscernible) this person said. I'm going to be in here, sir, we got - see the clip (indiscernible) so that's it. So she cannot talking about that way, you know. You're the court in here, the judge, right. (Indiscernible). She cannot talk to me like that, sir. I don't talk (indiscernible) together, so I don't know her-so she lying to me, so I just (indiscernible) for Tuesday, you tell me, you know, the urine test, I just accept it (indiscernible) that.
The State argued that Nur's statements - and in particular, the statement "I don't know her"-were relevant to counter Nur's consent defense (i.e., his argument that he did have sexual intercourse with D.M., but that it was consensual). Nur's attorney objected, arguing that the recording was unintelligible and confusing as well as cumulative to similar statements Nur had made during his police interview. The defense attorney also expressed concern that playing a portion of the arraignment would reveal that Nur was incarcerated at the time, as Nur's statements were made in the context of a larger discussion about bail release.
The prosecutor offered to redact any references to bail or custody. The prosecutor also argued that Nur's statements were not cumulative since they were made to a judge and to the victim - and thus, showed consciousness of guilt under different circumstances.
Although the trial court was unable to fully understand what Nur was saying after listening multiple times, the court overruled Nur's objections, finding that the audio of Nur's response was relevant and admissible for the purpose for which the State had offered it. However, the court precluded any references to the fact that Nur was incarcerated at the time of the arraignment.
The prosecutor subsequently introduced the audio recording of Nur's statements through D.M. Despite Nur's previously expressed concern about the risk of revealing Nur's custodial status, D.M. responded to one of the prosecutor's questions by referring to the hearing as the one that occurred "at the jail." (Nur moved for a mistrial, and his challenge to the denial of that motion is addressed in the next section.)
On appeal, Nur challenges the court's order allowing the State to introduce Nur's statements from arraignment. Nur argues that, to the extent the statements had any probative value, that value was low, given that the recording was largely unintelligible, Nur's statements themselves were cumulative to Nur's other denials and not inconsistent with consensual sex, and the prosecutor's basis for admission - i.e., that Nur argued in his opening statement that everyone lies to the police-was not borne out by the record. Nur also argues that any relevance was outweighed by the danger of unfair prejudice - in particular, that the jury would learn that Nur was incarcerated.
We question the probative force of Nur's statements. Upon first listening to the audio recording, the trial court could not understand any of it. Even after continued listening, the judge had trouble discerning the critical portion - Nur's statement, "I don't know her" - even suggesting at one point that Nur might be saying the opposite. We have listened to the audio recording of the arraignment, and we agree that it is difficult to understand, in part because of the quality of the audio and in part because of Nur's strong accent.
Nur is not a native English speaker; his first language is Somali.
Ultimately, the court ruled that the parties could ask the witness further questions about what was or was not said, and then argue about it. But what was said was critical to the value of the statements, either to demonstrate consciousness of guilt or to undermine Nur's consent defense.
Balanced against this was the risk of unfair prejudice. As Nur's attorney noted, there was a real risk that D.M. might refer to the fact that Nur was in jail - a possibility that came to pass.
But while we question the trial court's decision to admit this evidence, we ultimately conclude that any error was harmless. Nur does not identify any prejudice specific to the statements themselves, and instead focuses primarily on D.M.' s reference to the arraignment having occurred at the jail (an issue we address in the next section). As we have noted, the recording of the arraignment itself is difficult to understand. Moreover, to the extent that Nur could be interpreted as saying he did not know D.M., such a statement is cumulative to Nur's similar denials to the police. We therefore conclude that admission of Nur's statements at his arraignment would not have appreciably affected the verdict.
See Love v. State, 457 P.2d 622, 632 (Alaska 1969).
The court did not abuse its discretion in denying Nur's motion for a mistrial
As we previously noted, the State introduced Nur's statements from arraignment during D.M.'s testimony. To establish the foundation for admitting the audio recording, the prosecutor asked D.M. whether she remembered appearing at an earlier "court hearing," at which both Nur and a judge were present. In response, D.M. sought clarification by asking, "At the jail?" The prosecutor did not respond to this question. Instead, the prosecutor asked D.M. whether she remembered speaking at the hearing, and then asked about her statements and Nur's response, before playing the audio clip of Nur's statements. Neither D.M. nor the prosecutor made any further reference to Nur being in jail during the prior hearing.
Nur moved for a mistrial, which the trial court denied. The court found that there was little prejudice from the "slight reference" to the fact that Nur was in jail, noting that "[t]he prosecutor didn't repeat it or elaborate on it." The court continued:
[T]he fear is that perceptive witnesses will have picked up on it and draw some conclusions on it, but if they're that perceptive, I think that they will also know, as I think most Americans know, that if you're arrested, that's where you go, is to jail. And then very shortly thereafter there is going to be some kind of a hearing to determine whether you can get out of jail on bail. And that's the most logical conclusion that a very perceptive . . . juror would draw under these circumstances. And I just don't think that's . . . any more prejudicial than jurors knowing that he'd been arrested.
The court offered to give a curative instruction to the jury, but Nur's attorney declined the court's offer.
On appeal, Nur argues that the trial court erred in denying his motion for a mistrial. The State agrees with Nur that the jail reference was improper, but argues that the trial court did not abuse its discretion in declining to grant a mistrial for this brief and equivocal comment by D.M.
We agree that D.M.'s reference to the location of the hearing as being "at the jail" was improper. We are also concerned that the prosecutor may have failed to communicate the court's limitations on D.M.'s testimony to D.M. herself. But ultimately, we cannot conclude that D.M.' s passing reference to whether the hearing was the one "at the jail" was so prejudicial as to necessitate a mistrial.
A trial court is vested with broad discretion in determining whether to grant a mistrial when the jury is exposed to potentially prejudicial evidence. We will only reverse a trial court's decision when, "after reviewing the whole record, we are left with a definite and firm conviction that the trial court erred in its ruling."
Amidon v. State, 565 P.2d 1248, 1261 (Alaska 1977).
Roussel v. State, 115 P.3d 581, 585 (Alaska App. 2005) (reviewing a trial judge's decision on a motion for a mistrial for an abuse of discretion).
We have previously held that a passing reference to the fact that a defendant was in custody, particularly when the defendant was facing serious charges, does not necessarily require a mistrial. Here, the court cautioned the prosecutor to ask D.M. foundational questions that were designed to avoid any suggestion that Nur was in custody. Although D.M. nonetheless asked whether the referenced hearing occurred "at the jail," the prosecutor did not answer her question, quickly moved on, and did not rely on the statement later in the trial. Under these circumstances, we conclude that the trial court did not abuse its discretion in ruling that a curative instruction was sufficient to cure any prejudice and denying Nur's motion for a mistrial.
See, e.g., Malemute v. State, 791 P.2d 624, 626 (Alaska App. 1990) (holding that the trial court did not abuse its discretion in denying a mistrial after the arresting officer made a single, passing reference to Malemute's recent incarceration); see also Preston v. State, 615 P.2d 594, 603-04 (Alaska 1980) (holding that the trial court did not abuse its discretion in denying a mistrial when the witness violated a protective order precluding mention of the defendant's probationary status); cf. Newcomb v. State, 800 P.2d 935, 941-42 (Alaska App. 1990) (holding that even if the jury presumed from certain security measures taken during trial that Newcomb was in custody and physically restrained, that fact alone did not deny Newcomb the right to a fair trial, given the high likelihood that jurors would believe from the seriousness of the charges that Newcomb was in custody).
We note that, although neither party mentions it on appeal, later in the trial, the State admitted and played for the jury the entire audio recording of Nur's interviews with the detective - one of which referenced the fact that Nur was then incarcerated. Nur did not object to this reference, even though it was arguably more prejudicial than D.M.' s comment, as Nur's statements to the detective preceded the charges in this case, thus indicating to an astute juror that Nur was in custody on other charges.
See Hamilton v. State, 59 P.3d 760, 769 (Alaska App. 2002) (recognizing that a curative instruction, if promptly given, is generally presumed to remedy any unfair prejudice from inadmissible evidence (citing Roth v. State, 626 P.2d 583, 585 (Alaska App. 1981))).
The evidence was sufficient to show that Nur intended to cause D.M. pain for purposes of proving second-degree assault
Nur next challenges the sufficiency of the evidence to support his guilt on the charge of second-degree assault.
Nur does not contest the sufficiency of the evidence supporting his first-degree sexual assault conviction, into which the second-degree assault merged.
Nur was charged with second-degree assault based on the theory that he intentionally caused D.M. physical injury by using his hand as a dangerous instrument. To convict Nur of second-degree assault under this theory, the State was required to prove that (1) Nur intended to cause physical injury to D.M., (2) Nur actually caused physical injury to D.M., and (3) Nur caused this injury by means of a dangerous instrument. "Physical injury" is defined as "a physical pain or an impairment of physical condition."
AS 11.41.210(a)(1).
AS 11.81.900(b)(48).
Nur argues that the State presented insufficient evidence to show that he intended to cause physical injury to D.M. But specific intent can rarely be proved by direct evidence, and jurors may infer intent from the totality of the evidence.
Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994).
Here, D.M. testified that when she struggled against Nur, Nur held her down with his hand on her neck and applied pressure for about five minutes, hurting her neck. The jury also heard the recording of D.M.'s SART interview, in which she told the examiners that she saw stars after Nur grabbed her throat and that she "thought [she] was going to like die or something." From this evidence, the jury could reasonably infer that Nur intended to cause D.M. pain or otherwise impair her physical condition, even if that was not his primary goal.
See AS 11.81.900(a)(1) (providing that "a person acts 'intentionally' with respect to a result. . . when the person's conscious objective is to cause that result," although "that intent need not be the person's only objective").
When we review a claim of evidentiary insufficiency, we are required to view the evidence-and all reasonable inferences from the evidence-in the light most favorable to the verdict. Viewing the evidence in that light, we then ask whether a reasonable juror could find the defendant guilty beyond a reasonable doubt.
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
Id.
Applying that standard, we conclude that the evidence was sufficient to establish that Nur intended to cause physical injury to D.M. We therefore reject Nur's challenge to the sufficiency of the evidence to support the second-degree assault verdict.
It is not clear whether Nur is also challenging the sufficiency of the evidence to support the "dangerous instrument" element. He does not substantively brief the issue in the section of his brief addressing the sufficiency of the evidence, and his discussion of the evidence supporting the second-degree assault in connection with the motion for a new trial is very cursory. To the extent that Nur is challenging the sufficiency of the evidence to support the "dangerous instrument" element, we conclude that - viewing the evidence in the light most favorable to the jury's verdict, as we are required to do - the evidence was sufficient to support this element.
The trial court did not abuse its discretion in denying Nur's motion for a new trial on both charges
Finally, Nur argues that he was entitled to a new trial on both charges. He contends that there was substantial evidence contradicting D.M.'s claim that the sexual penetration was without consent and that the jury's determination that Nur committed second-degree assault was against the weight of the evidence.
In his opening brief, Nur attempts to incorporate his original motion for a new trial by reference; this motion included various claims of prosecutorial misconduct. But Alaska does not generally permit litigants on appeal to incorporate trial court arguments by reference. See Blair v. Federal Ins. Co., 433 P.3d 1048, 1053 & n.19 (Alaska 2018). Nur has therefore forfeited for appeal any claims of prosecutorial misconduct raised in his motion for a new trial.
The trial court merged the second-degree assault into the first-degree sexual assault conviction, which would typically render moot the request for a new trial on the second-degree assault charge. But the merger happened in an unusual way. The trial court merged the two counts after agreeing with the State that Nur was subject to a sentence enhancement on the first-degree sexual assault conviction - because he "used a dangerous instrument... during the commission of the offense" - based on the jury's guilty verdict on the second-degree assault charge. See AS 12.55.125(i)(1)(B). This enhancement elevated Nur's presumptive sentencing range by 5 years. Compare AS 12.55.125(i)(1)(A)(ii) with AS 12.55.125(i)(1)(B). We question whether this procedure comports with the United States Supreme Court's decisions in Blakely v. Washington, 542 U.S. 296 (2004) and Alleyne v. United States, 570 U.S. 99 (2013). While the evidence at trial supported the notion that Nur used his hand to hold down D.M. by the neck "during the commission of the [sexual assault]," the trial court applied the enhancement without an express jury finding that the two events happened simultaneously. That said, although Nur objected in the trial court on this ground, he does not renew this challenge on appeal. Accordingly, we note the issue to explain why the court merged the two counts and why we address Nur's motion for a new trial as to both counts, but do not address it further.
As we discussed in Phornsavanh v. State, when a trial court reviews a motion for a new trial on the ground that the verdict was against the weight of the evidence, the trial judge sits as metaphorical "thirteenth juror" - independently weighing the evidence and evaluating the credibility of the witnesses to determine whether a new trial is necessary "in the interest of justice." An appellate court reviews the trial court's ruling for an abuse of discretion, and will find that the trial court abused its discretion only "if the evidence supporting the verdict is so slight and unconvincing as to make the verdict plainly unreasonable and unjust."
Phornsavanh v. State, 481 P.3d 1145, 1157-58 (Alaska App. 2021) (quoting Alaska Criminal Rule 33).
Id. at 1159 (internal quotations omitted).
In a written order detailing the evidence at trial, the trial court denied Nur's motion for a new trial. The trial court concluded that the determination of Nur's guilt turned largely on the relative credibility of Nur and D.M. The court found that, in its view, D.M. was credible. The court noted that, during her initial interview with the responding officers, D.M. "gave a consistent report of what had happened, in spite of being intoxicated" and in spite of the officers' initial skepticism of her report. The court further noted that D.M.' s initial account was consistent with the account she gave during her SART examination the following day, and at trial.
In contrast, the court found that the DNA evidence directly contradicted Nur's statements to the police that he had never met D.M. or had sex with her - and further, that his repeated false statements indicated a consciousness of guilt. The court found that the physical evidence-the DNA evidence and the bruising on D.M.' s body - corroborated her version of events.
Ultimately, the court stated that after "a thorough and independent review," it "agree[d] with the jury's verdicts" and concluded that the verdicts were supported by the weight of the evidence. Having reviewed the record, we conclude that the trial court did not abuse its discretion in reaching this conclusion.
We acknowledge that in reaching its conclusion, the trial court recited the standard that governs appellate review of the denial of a motion for a new trial - i.e., whether "the evidence supporting the verdict is so slight and unconvincing as to make the verdict plainly unreasonable and unjust." We recognized in Phornsavanh that this standard does not apply to the trial court's ruling on a motion for a new trial in the first instance, and we disavowed our prior cases that confused the two standards.
Id. at 1159-60.
Nonetheless, it is clear from the trial court's order that, unlike the trial court inPhornsavanh, the court in this matter properly understood that it was required to "take a personal view of the evidence," without reference to what a reasonable juror could find, when it evaluated whether the verdict was against the weight of the evidence. The court recognized that it was required to sit as a "thirteenth juror," independently evaluating the evidence and credibility of the witnesses and determining whether a new trial was required in the interest of justice. And, after evaluating the evidence, the court determined that it "agree[d]" with the jury's verdicts and that they were supported by the weight of the evidence.
Id. at 1158-59 (internal quotations omitted).
Hunter v. Philip Morris USA, Inc., 364 P.3d 439, 447 (Alaska 2015); Phornsavanh, 481 P.3d at 1157-58.
For these reasons, we uphold the trial court's denial of Nur's motion for a new trial.
Conclusion
The judgment of the superior court is AFFIRMED.