Galaktionoff v. State, 052720 AKCA, A-12998

Docket Nº:A-12998
Opinion Judge:ALLARD, JUDGE
Party Name:DAVID WAYNE GALAKTIONOFF, Appellant, v. STATE OF ALASKA, Appellee.
Attorney:Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Judge Panel:Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
Case Date:May 27, 2020
Court:Court of Appeals of Alaska
 
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DAVID WAYNE GALAKTIONOFF, Appellant,

v.

STATE OF ALASKA, Appellee.

No. A-12998

Court of Appeals of Alaska

May 27, 2020

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, Third Judicial District, Anchorage, Michael D. Corey and Warren W. Matthews, Judges. Trial Court No. 3AN-16-05925 CR

Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

Michal Stryszak, 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

ALLARD, JUDGE

David Wayne Galaktionoff was arrested after he attacked a pedestrian who was walking in mid-town Anchorage. Galaktionoff approached the pedestrian from behind, wrapping his arms and legs around him and ultimately bringing him down to the ground. According to the testimony at trial, Galaktionoff s arms were around the pedestrian's neck, but the pedestrian (who was trained in self-defense) was able to lower his chin to avoid being strangled. Galaktionoff also hit the pedestrian several times in the head.

Galaktionoff was indicted on two counts of third-degree assault under two different theories. Count I charged Galaktionoff with third-degree assault under AS 11.41.220(a)(1)(A) (recklessly placing another person in fear of imminent serious physical injury by means of a dangerous instrument). Count II charged Galaktionoff with third-degree assault under AS 11.41.220(a)(5) (recklessly causing physical injury to another person, having been convicted within the preceding ten years on two or more separate occasions of crimes with elements similar to AS 11.41.230(a)(1) or (2)).

The jury found Galaktionoff guilty of both counts at trial. The superior court merged the two counts into a single conviction for third-degree assault1 and sentenced Galaktionoff to 60 months with 6 months suspended (54 months to serve) and 5 years' probation, with general and special conditions.

Galaktionoff now appeals his conviction, challenging the indictment and the sufficiency of the evidence presented at trial. Galaktionoff also appeals two probation conditions that were imposed over his objection.

For the reasons explained in this decision, we affirm Galaktionoff s conviction for third-degree assault, but we vacate the two challenged probation conditions and remand this case to the superior court for reconsideration of those two conditions.

Galaktionoff's challenge to the grand jury indictment

After the grand jury indicted him on both counts of third-degree assault, Galaktionoff moved to dismiss the indictment on Count II (the recidivist count), arguing that the prosecutor relied on inadmissible hearsay to establish Galaktionoff s prior convictions for the recidivist offense.

At the grand jury proceeding, the prosecutor relied on records from the Alaska Public Safety Information Network (APSIN) to establish Galaktionoff s prior convictions for the recidivist count. Galaktionoff argued that use of these records was improper and that the prosecutor was required to introduce certified judgments of the prior convictions.

The grand jury proceeding in Galaktionoff s case was held in August 2016. At the time, Alaska law allowed prosecutors in grand jury proceedings to rely on APSIN records to establish prior convictions in felony driving while under the influence cases and felony refusal cases.2

In 2019, the Alaska legislature extended this rule to all recidivist offenses. Alaska Criminal Rule 6(r)(6) now provides: When a prior conviction is an element of an offense, hearsay evidence received through the Alaska Public Safety Information Network or from...

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