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THE COURT OF APPEALS OF THE STATE OF ALASKA
RUDY PAVLIK )
and THOMAS SCHMIDT, )
) Court of Appeals Nos. A-4767/68
Appellants, ) Trial Court Nos. 1YA-S91-67/68CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1339 - March 11, 1994]
Appellee. )
______________________________)
Appeal from the District Court, First
Judicial District, Yakutat, Peter B.
Froehlich, Judge.
Appearances: Walter Share, Seattle,
Jeffrey M. Feldman, Young, Sanders & Feldman,
and Michael J. Keenan, Anchorage, for
Appellants. Thomas E. Wagner, Assistant
District Attorney, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats,
Judge, and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Rudy Pavlik and Thomas Schmidt were convicted,
following a joint jury trial, of operating more than one set net
each in violation of 5 Alaska Administrative Code
(AAC) 30.331(a)(1)(H). On appeal, they argue that the evidence
at trial was insufficient and that the trial court erred in
admitting evidence of prior misconduct. We reverse and remand
for a new trial.
On September 17, 1991, Fish and Wildlife Officer Robert
Beasley and Park Ranger Alan Peck were conducting surveillance
along the banks of the Spoon River, in the Yakutat District. As
Beasley and Peck watched from hiding, they saw Pavlik, Schmidt,
and a third man, John Matsko, in a skiff. Four set nets had been
deployed in the river near the skiff; no one else was in the
area.
From their vantage point, Beasley and Peck observed the
men remove three of the four nets from the water, pick fish from
them, and replace them in the river. The officers' view of the
fishing activities at two of these nets was unobstructed; their
view of the third was partially obstructed, but the officers saw
enough to enable them to testify that the three men appeared to
be picking fish from the net and "were operating that net for
sure." As the officers continued to watch, the men drove the
skiff toward the fourth net, which was out of view. By the time
the officers made their way to a point where the fourth net would
have been visible, the skiff had already departed and the net was
gone.
Beasley and Peck were able to determine that Pavlik and
Schmidt each had a permit for one set net, but Matsko had only a
crew member's license. Based on their observations, the officers
charged Pavlik and Schmidt with operating more than one set net
each, in violation of 5 AAC 30.331(a)(1)(H).
Pavlik and Schmidt first argue that the evidence was
insufficient to prove that they fished more than the one net each
for which they had permits. They suggest that the evidence left
open the possibility that someone else might have operated the
net at which their skiff was never actually seen, and that the
officers' limited and partially obscured observations of their
activities at one of the other three nets left open the
possibility that they had only manipulated that net to get their
skiff past it. In considering a motion for judgment of
acquittal, however, the trial court must view the evidence and
the inferences to be drawn therefrom in the light most favorable
to the state. The motion must be denied if the court determines
that fair-minded jurors in the exercise of reasonable judgment
could differ on the question of whether guilt had been
established beyond a reasonable doubt. Des Jardins v. State, 551
P.2d 181, 184 (Alaska 1976); Snyder v. State, 661 P.2d 638, 641
(Alaska App. 1983). The same standard applies whether the
evidence of guilt is direct or circumstantial. Des Jardins, 551
P.2d at 184; Snyder, 661 P.2d at 641.
In arguing that the evidence below was insufficient to
establish their guilt, Pavlik and Schmidt mistakenly construe the
evidence in the light most favorable to their own case and
implicitly suggest that circumstantial evidence cannot support a
finding of guilt. Our review of the record convinces us that
fair-minded jurors considering the totality of direct and
circumstantial evidence in the light most favorable to the state
could reasonably conclude that the state had met its burden of
proving guilt beyond a reasonable doubt. The trial court did not
err in finding sufficient evidence to submit the case to the
jury.
Pavlik and Schmidt separately argue that the trial
court abused its discretion in admitting evidence of prior bad
acts at trial. Over Pavlik and Schmidt's objections, the trial
court allowed Beasley to testify that his presence with Beck at
the Pavlik family's Spoon River fishing site was prompted by a
report that the Pavliks had fished illegally there the previous
year. Beasley testified that a former crew member of the Pavliks
had reported to the state troopers that during the 1990 fishing
season the Pavliks had repeatedly engaged in illegal fishing
practices similar to those charged in this case.
The trial court ruled that this evidence was relevant
to explain the officers' presence in the area and was not unduly
prejudicial. On appeal, Pavlik and Schmidt dispute this ruling,
arguing, as they did below, that the evidence of prior bad acts
was inadmissible under Alaska Rule of Evidence 404(b). Under
Rule 404(b)(1),
Evidence of other crimes . . . is
not admissible if the sole purpose for
offering the evidence is to prove the
character of a person in order to show that
the person acted in conformity therewith. It
is, however, admissible for other purposes,
including, but not limited to, proof of
motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake or accident.
This rule has consistently been interpreted to require exclusion
of prior bad acts evidence unless it is relevant to a material
fact other than propensity. Oksuktaruk v. State, 611 P.2d 521,
524 (Alaska 1980); Lerchenstein v. State, 697 P.2d 312, 315
(Alaska App. 1985), aff'd, 726 P.2d 546 (Alaska 1986).1
Here, the trial court admitted the disputed evidence to
explain the officers' presence in the area of the Pavlik family's
fishing site. Yet evidence explaining the officers' presence at
the site had no direct bearing on any element of the offenses
charged; nor did such evidence tend to advance any other issue
that was actually in dispute. Significantly, Pavlik and Schmidt
alleged no bias or impropriety on the part of the officers
stemming from their presence at the Spoon River fishing site.
Quite to the contrary, Pavlik and Schmidt specifically offered to
stipulate that the officers were properly in the area to look
for possible fishing violations.
The state argues that the disputed evidence also might
have been admissible to show preparation, plan, knowledge,
identity or absence of mistake or accident. But the trial court
did not address or rely on these alternative rationales. Nor
does it appear that they could conceivably have applied.
Preparation and identity were not disputed issues at trial.
Neither did Pavlik and Schmidt place their intent in issue: they
did not claim accident, mistake or lack of knowledge. And while
evidence of prior similar crimes will always be relevant to
establish the possibility of a common scheme or plan in the broad
sense -- that is, in the sense of showing the defendant's general
willingness to engage in an ongoing pattern of similar criminal
acts -- proof of a common scheme or plan will itself have no
material value unless it tends to elucidate identity or intent,
or to establish some other disputed point apart from the
defendant's general tendency to commit similar crimes. Standing
alone, the mere showing of a tendency to commit similar crimes
amounts to nothing more than the inference of propensity
prohibited under A.R.E. 404(b)(1). See Velez v. State, 762 P.2d
1297 (Alaska App. 1988).
Here, the disputed testimony had no relevance to any
issue actually in dispute and could only have served to establish
Pavlik and Schmidt's propensity for criminal misconduct.
Admission of this evidence was barred under A.R.E. 404(b)(1). In
the context of the present case, the error in admitting this
evidence cannot be dismissed as harmless. The evidence against
Pavlik and Schmidt, though legally sufficient to support their
convictions, was not overwhelming. Moreover, in his closing
argument, the prosecutor actively encouraged the jury to use the
report of prior misconduct as propensity evidence. Responding to
defense counsel's argument that the evidence as a whole showed
only that the defendants had been present at the scene, the
prosecutor argued:
It's not just that they happen[ed] to be
there. This is what was happening here.
These three gentlemen were working together
conducting this entire illegal fishing
operation at night. That was what the
troopers went over there to investigate.
They had a report that this is what was
happening at night at this site, and they
went over there to investigate, and that's
what happened. And then daytime comes, or
flying weather improves, everything's taken
out and one legal net is left.
We cannot fairly say that the improper admission of
evidence of prior illegal fishing did not appreciably affect the
jury's verdict. See Love v. State, 457 P.2d 622, 632 (Alaska
1969).
The judgments of conviction against Pavlik and Schmidt
are REVERSED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. Oksuktaruk and Lerchenstein were decided under the
originally enacted version of A.R.E. 404(b) and construed the
provision as a rule of exclusion. In 1991, the Alaska
legislature amended A.R.E. 404(b), recharacterizing it as a rule
of inclusion rather than exclusion. Ch. 79, 1(c) SLA 1991.
Although the present case is governed by the amended version of
the rule, the state has not argued that the 1991 amendment would
have any significance in the factual circumstances presented
here. We have no occasion to consider the extent to which the
1991 amendment to A.R.E. 404(b) might affect the continuing
validity of Oksuktaruk and Lerchenstein in other factual
settings.
