Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Bryant v. State (07/01/2005) ap-1990

Bryant v. State (07/01/2005) ap-1990

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


EVERETT E. BRYANT,            	)
                              		)              Court of Appeals No.A-8375
                              Appellant,         )	Trial Court No. 1KE-96-249 Cr
                              		)
                  v.          		)
                              		)                        O  P  I  N I  O  N
STATE OF ALASKA,              	)
                              		)
                              Appellee.          )	[No. 1990  June 24, 2005]
                              		)


          Appeal  from the Superior Court,  First  Judi
          cial  District, Ketchikan, Thomas  M.  Jahnke
          and Larry C. Zervos, Judges.

          Appearances:   Sharon Barr, Assistant  Public
          Defender,   and  Barbara  K.  Brink,   Public
          Defender,   Anchorage,  for  the   Appellant.
          James  L. Hanley, Assistant Attorney General,
          Office  of Special Prosecutions and  Appeals,
          Anchorage,  and  Gregg  D.  Renkes,  Attorney
          General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          STEWART, Judge.
          MANNHEIMER, Judge, concurring.

          Everett E. Bryant was convicted of one count of  first-

degree  sexual  abuse of a minor.1  After the jury  returned  its

verdict,  Bryant  moved  for  a new  trial  on  several  grounds,

including  claims that he had received ineffective assistance  of

counsel.   The  superior  court denied  Bryants  motion.   Bryant

appeals  the  ruling on the motion for a new  trial  and  several

evidentiary rulings during trial.

          We  uphold  the  courts evidentiary rulings.   We  must

remand  the  case  to the superior court for additional  findings

regarding Bryants claim of ineffective assistance.



          Background Facts and Proceedings

          Bryants  first  trial ended in a mistrial  because  the

jury  failed  to  reach a verdict.  The jury at  Bryants  retrial

found Bryant guilty of first-degree sexual abuse of A.M., a five-

year-old  girl whose family had resided with Bryant.   After  the

verdict,  Bryant obtained another attorney, and the new  attorney

moved  for a new trial on several grounds, including claims  that

Bryants   trial  counsel  had  provided  ineffective  assistance.

Superior  Court  Judge  Thomas  M. Jahnke  dismissed  several  of

Bryants  claims  of ineffective assistance on the pleadings,  but

ruled  that  an evidentiary hearing was necessary to resolve  the

remaining claims.

          Judge Jahnke retired before the evidentiary hearing and

Superior  Court Judge Larry C. Zervos was assigned to  the  case.

Judge Zervos declined to reconsider most of the claims that Judge

Jahnke  had  already  dismissed.  Judge Zervos  rejected  Bryants

remaining claims and denied the motion for a new trial.


          Did the superior court err in denying Bryants motion to

          present evidence that the victims mother had previously

          made false claims of sexual abuse?

          Before the first trial, Bryant moved to admit character

evidence  under  Alaska  Evidence Rule 404(a)(2).   Specifically,

Bryant  offered testimony that A.M.s mother, Nancy Wickline,  had

previously accused other men of sexually abusing the victim.

          Judge  Jahnke  took  Bryants  motion  under  advisement

awaiting  proof  of  the alleged false reports  to  be  presented

outside  the jurys presence.  Judge Jahnke returned to the  issue

several  times awaiting Bryants presentation.  At  one  of  these

hearings during Bryants first trial, Judge Jahnke advised  Bryant

that  he  had  offered  only  ...  some  still  relatively  vague

descriptions  of the evidence and that Bryant needed  to  make  a

more specific presentation before Judge Jahnke could rule on  the

issue.

          The next time the court considered the issue during the

first  trial, Bryant explained that he wanted to explore  several

allegations  at trial:  (1) that A.M.s sister, C.W., had  accused

her  stepfather  of sexually abusing her; (2) that  Wickline  had

once  accused a former boyfriends two sons of abusing  A.M.;  and

(3)  that  Wickline   had  told  C.W.s  stepfather  that  men  in

Virginia,  Alabama, and Arkansas had abused C.W.  Bryant  claimed

that the stepfather would testify that he had not abused C.W. and

that  Wickline  had  recanted  her allegations  that  her  former

boyfriends sons had abused A.M.  Bryant also stated that he would

like  to  call Wicklines former boyfriend, but that he could  not

locate him.

          However,  Bryant  did not present  any  testimony  from

either the stepfather or Wicklines former boyfriend in support of

his  request.  Bryant stated that the stepfather was out of state

fishing and could not be contacted.  Bryant also stated that  the

stepfather had not signed and returned an affidavit that had been

sent to him several weeks previously.  Wicklines former boyfriend

had  also refused to sign an affidavit that had been sent to  him

at a previous address.

          Judge  Jahnke  observed that Bryant  had  not  met  his

burden for several reasons.  First, Judge Jahnke pointed out that

the  evidence would be offered to impeach the credibility of  the

victims  mother,  not  the victim. Second,  he  stated  that  the

connection between the accusations against Bryant and the earlier

accusations was not readily apparent.  Finally, he ruled that the

reports of abuse that Bryant sought to use at trial had not  been

proven false in a manner that was more or less unequivocal.

          Before  the retrial that began over three months  after

the mistrial, Judge Jahnke told the parties that unless there was

additional  evidence or additional authority he should  consider,

the  rulings  from the first trial would apply.  Bryant  did  not

present   additional  evidence  or  offer  additional   authority

regarding his request to admit evidence of false claims.

          On  appeal, Bryant argues that Judge Jahnke applied the

wrong standard in ruling that Bryant could not introduce evidence

relating  to Wicklines alleged history of falsely reporting  that

A.M.  had been sexually abused.  Specifically, Bryant claims that

Judge  Jahnke  should  have  applied  the  preponderance  of  the

evidence  standard  to  determine whether  Bryant  could  present

evidence that Wickline had made prior false allegations of abuse.

          We  review  a trial courts evidentiary rulings  for  an

abuse  of discretion.2  A trial court abuses its discretion  only

when its decision is clearly untenable or unreasonable.3

          In Covington v. State,4 we ruled that a defendant in  a

sexual  assault  case  may introduce evidence  that  the  alleged

victim   has  made  prior  false  accusations  if  the  defendant

establishes the falsity of the prior accusations.5  In Morgan  v.

State,6  we clarified Covington by holding that a defendant  must

prove  the falsity of a prior false accusation of sexual  assault

by the preponderance of the evidence.7

          Here,  Bryants  argument  fails  for  several  reasons.

          First, although Morgan permits a trial judge to admit evidence of

prior  false  accusations made by an alleged victim in  a  sexual

assault case, Bryant did not offer prior false accusations by the

victim.   Instead,  Bryant wanted the court to admit  purportedly

false accusations made by the victims mother, Wickline.

          We  have noted that in a sexual assault prosecution  an

alleged  sexual assault victims prior false accusation of  sexual

assault  has  a special relevance.  This relevance  removes  such

evidence  from  the  normal ban on attacking a  witnesss  general

character  for honesty through the use of specific  instances  of

dishonesty.8   But  we  have  not ruled  that  the  same  special

relevance  applies to prior false accusations of a witness  other

than  the  alleged victim, and Bryant has not cited any authority

for this proposition.

          More importantly, even if evidence of Wicklines alleged

prior false reports were admissible, Bryant presented no evidence

supporting his request even though Judge Jahnke clearly indicated

his  willingness to hear such evidence out of the jurys presence.

Moreover,  Bryant  could not actually present  the  witnesses  he

claimed  would  testify  that  Wickline  had  made  prior   false

accusations.   These  witnesses  were  apparently  unwilling   to

testify  voluntarily or impossible to locate  and  serve  with  a

subpoena.  Therefore, the only support Bryant offered was Bryants

attorneys  offer  of  proof.   That is  insufficient  to  satisfy

Bryants  burden  of  establishing, by the  preponderance  of  the

evidence,  that  Wickline  had made prior  false  allegations  of

abuse.  Accordingly, we reject Bryants argument.



          Did  the  superior  court  err  in  admitting  rebuttal

          evidence of Bryants character?

          Bryant  testified  at  his retrial  that  he  was  very

concerned  with  child  welfare, and that the  idea  of  sexually

abusing A.M. was beyond [his] scope.  After Bryant had testified,

the  State  sought  to introduce evidence that  Bryant  had  made

          inappropriate  sexual comments about  female  children.

Specifically, the State offered testimony that C.W. heard  Bryant

comment  about her breasts when she was fourteen years old.   The

State also wanted to present testimony from Cody Hughes, a former

boyfriend  of Wickline,  that when Hughes and Bryant  drove  past

several  ten- or twelve-year-old girls, Bryant asked wouldnt  you

like  to throw your worm out there?  The State also offered C.W.s

testimony  that  Bryant  had touched her  several  times  on  her

breasts  and  buttocks.  The State argued that this evidence  was

relevant  to rebut Bryants claim that he would never think  about

sexually abusing a child.

          Judge   Jahnke  ruled  that  the  State  could  present

evidence  of  the  comments Bryant had made about  C.W.  and  the

school-aged girls, but he rejected the States request to  present

the testimony that Bryant had touched C.W.  Judge Jahnke reasoned

that  evidence of the comments was appropriate to rebut the image

...  painted  in [Bryants] testimony with a very broad  brush  of

someone   ...  who  is  very  concerned  about  the  welfare   of

children[.]   But  Judge Jahnke reasoned  that  evidence  of  the

touching  was less probative because it involved a post-pubescent

female rather than a young girl, and that its probative value was

therefore  outweighed by the potential for  prejudice.         On

appeal, Bryant argues that Judge Jahnke erred in determining that

the  evidence  was appropriate rebuttal evidence.   Specifically,

Bryant  claims that he was being charged with molesting  a  five-

year-old  girl, and that he did not discuss any of  his  feelings

toward pre-teen or teenage girls in his testimony.  Bryant argues

that evidence of his sexual comments about ten- to fourteen-year-

old girls was irrelevant.

          Alaska Evidence Rule 404(a) provides that evidence of a

persons  character  or a trait of character  is  not  [generally]

admissible  for the purpose of proving that the person  acted  in

conformity therewith on a particular occasion[.] Alaska  Evidence

Rule  404(b)(1) extends this prohibition to evidence of a persons

other  crimes, wrongs, or acts [that are solely offered] to prove

the  character of a person in order to show that the person acted

in  conformity therewith.  Therefore, evidence of a persons prior

bad  acts,  like  other  forms  of  character  evidence,  is  not

generally  admissible in court if it is offered  as  illustrative

evidence of the persons character.

          But  if  a defendant introduces evidence of his or  her

good  character, the prosecution may rebut the evidence  of  good

character by offering evidence of specific incidents that tend to

rebut the defendants evidence of good character.9

          In Bryants case, the State offered evidence that Bryant

had  made  sexual statements about young girls to  rebut  Bryants

testimony   about  his  benevolent  non-sexual   attitude   about

children.  Bryant testified that he had previously been  employed

as a counselor to teenagers who had been victims of sexual abuse.

He  also testified that he had volunteered for a number of  local

charitable organizations, and that he regularly donated food  and

supplies to child care centers.  When he was questioned about his

attitude  toward  children, Bryant stated that  children  had  no

reason  not to trust him, and that the idea of sexually  touching

A.M. was beyond [his] scope.

          In  other words, Bryant testified that he was concerned

for and involved with children of all ages (including teens), and

that  children in general had no reason to distrust  him.   Judge

Jahnke ruled that Bryants prior comments about young females were

admissible  to rebut Bryants broad claims about his  concern  for

children.   Given  Bryants statements about his attitudes  toward

children,  Judge  Jahnke  was justified in  concluding  that  the

evidence  that  Bryant had previously made sexual comments  about

ten-  to  fourteen-year-old  girls  was  admissible  as  rebuttal

evidence.   His decision to admit the evidence did not constitute

an abuse of discretion.

          Bryant  next  argues  that  the  superior  court  erred

because the evidence was more prejudicial than probative and thus

          should have been excluded under Evidence Rule 403.  Specifically,

Bryant  argues  that  the  evidence had limited  probative  value

because  it  related to comments he had made toward  teenage  and

preteen  girls rather than toward girls A.M.s age.   Bryant  then

argues  that the evidence was extremely prejudicial,  because  it

portrayed him as a sexually obsessed sleazy man.

             The  record  indicates that Judge  Jahnke  carefully

considered  the  potential  for  prejudice  associated  with  the

challenged  evidence before he allowed it to be  admitted.  Judge

Jahnke  ruled that the evidence of the comments that  Bryant  had

made was probative because it rebutted the general image that was

created ... by testimony about Mr. Bryants beliefs about kids ...

an  image  that  was created of everybodys Uncle Everett.   Judge

Jahnke  also specifically concluded that the probative nature  of

the  challenged evidence outweighed the potential  for  prejudice

associated  with that evidence.  Bryant has failed to demonstrate

that  Judge  Jahnkes  determinations were  clearly  untenable  or

unreasonable.10  We conclude that Judge Jahnkes ruling  that  the

evidence was admissible was not an abuse of discretion.

          Finally,  Bryant  argues that  Judge  Jahnke  erred  in

failing to give the jury a limiting instruction to ameliorate the

effects of the evidence relating to his prior statements.  Bryant

claims  that this courts decision in Bingaman v. State11 dictates

that  such an instruction must be given whenever prior  bad  acts

evidence is offered against a defendant.

          We addressed a similar argument in Inga v. State.12  In

Inga,  the  defendant argued that the trial court  had  erred  in

failing  to  issue a limiting instruction after  prior  bad  acts

evidence had been introduced at his trial.13  Noting that Bingaman

had  been decided after Ingas trial, and that Inga had failed  to

request  a limiting instruction from the trial court, this  court

ruled  that the trial judge had not erred in failing to  issue  a

limiting instruction at Ingas trial.14

          Both  of  these  considerations  are  also  present  in

          Bryants case.  Bryants trial, like Ingas, had been held before

this  court  issued its opinion in Bingaman.   And  Bryant,  like

Inga,  did  not  request  a limiting instruction  at  trial.   We

conclude  that  Judge Jahnke did not err in failing  to  issue  a

limiting instruction at Bryants trial.



          The  ineffectiveness claim relating to the  failure  to

challenge Juror Fulk

          During  jury selection at the second trial, the parties

conducted  voir dire of potential juror Steven Fulk  outside  the

presence of the panel.  Fulk disclosed that he was a good  friend

of  Trooper Robert Cox, who investigated the case and was one  of

the  States trial witnesses.  Fulk testified that Trooper Cox had

stayed  with  Fulk and his family while Cox was in Ketchikan  for

Bryants  first  trial and that Trooper Cox was again  staying  at

Fulks home during Bryants second trial.  Fulk also revealed  that

he  had  personal experience in his family with a case of  sexual

abuse  that appeared to be similar to Bryants, and was  cognizant

of  the  difficulty such cases present.  Under  questioning  from

Bryant,  Fulk  stated  that he would not  give  extra  weight  to

Trooper Coxs testimony.

          Judge  Jahnke  asked both parties if either  wished  to

challenge Fulk for cause.  Bryants attorney said that the defense

did  not  wish to challenge Fulk for cause  and the record  shows

that Bryant did not exercise a peremptory challenge for Fulk.

          The  record  shows  that Bryant and  his  attorney  had

conflicting  factual claims on what transpired  between  them  on

whether  to challenge Fulk.  The attorney indicated that he  gave

his  clients the final decision on every juror.  Consistent  with

this  practice, the trial attorney maintained that he  had  given

Bryant  the  option  of  whether to challenge  Fulk  because  the

attorney  was  impressed with Fulks voir  dire  answers.   Bryant

contended that he had told his attorney that he did not want Fulk

to serve on the jury.

          In  either  circumstance, whether  the  trial  attorney

chose  not to challenge Fulk or followed Bryants election to  not

challenge Fulk, the decision represented a tactical choice on the

part  of  the  trial attorney.  To prevail on the  claim,  Bryant

would have to overcome the strong presumption of competence  that

attaches to an attorneys tactical choice.15

          Judge  Jahnke  dismissed Bryants claim that  his  trial

attorney  was  ineffective for not removing  juror  Fulk  without

reaching  the  issue  of  the attorneys tactical  choice.   Judge

Jahnke  ruled  that it was not per se ineffective  assistance  of

counsel to allow ... a person to serve as a juror who is a friend

and  temporary lodging host of the investigating officer  of  the

case.   He  continued, [a]t the very least, before a  court  will

call  into  question the validity of a conviction  by  the  jury,

there  must  be  a relatively detailed allegation  of  prejudice.

Judge  Jahnke  concluded that Bryants motion did  not  plead  any

prejudice, so he dismissed this issue.  Bryant asked Judge Zervos

to reconsider Judge Jahnkes ruling, but Judge Zervos refused.

          Bryant argues that Judge Jahnke erred in dismissing the

claim  that  his  trial attorney was ineffective for  failing  to

discharge  juror  Fulk.  Bryant claims that the decision  not  to

remove   Fulk  from  the  jury  was  incompetent  and   that   no

particularized showing of prejudice is required.

          As we noted in Billy v. State,16 a defendant who alleges

ineffective  assistance of counsel must do more  than  present  a

mere  conclusory  or speculative allegation of  harm.17   A  mere

statement  that  an  attorneys mistakes must  have  affected  the

result is insufficient to meet this burden.18  Here, Bryants only

allegation  of  prejudice  was a statement  that  [the  attorneys

errors]  contributed to [his] conviction.  Bryant did not  allege

how his trial attorneys decision not to challenge Fulk prejudiced

him.

          On appeal, Bryant argues that Fulk was obviously biased

because he knew Trooper Cox, and that such bias would necessarily

have  prejudiced Bryant.  However, we have ruled that a defendant

claiming juror bias must present evidence demonstrating bias.  In

Young  v.  State,19 a defendant asked that a potential  juror  be

removed  for  cause  because the juror was  acquainted  with  the

investigating  officer and had initially expressed  doubts  about

his  ability to view the officers testimony impartially.20  After

          questioning by the court, however, the juror stated that he could

take [the officers] testimony and treat it without [consideration

of  his] previous contact with [the officer].21  The trial  court

refused  to excuse the juror for cause.  On appeal, Young claimed

the  trial  court  erred by refusing to  excuse  the  juror.   We

understood Young to argue that if the trial record contained  any

indication  of  a  jurors potential bias,  it  was  an  abuse  of

discretion  to  allow  the  juror to  remain  unless  the  record

contained  an unequivocal assurance of the jurors impartiality.22

But  we  rejected  Youngs claim, noting that the  Alaska  Supreme

Court had expressly declined that standard.23

          Here,  the record shows that juror Fulk testified  that

he  could be impartial.  During voir dire, when asked whether  he

would  be  able  to analyze Trooper Coxs testimony  fairly,  Fulk

stated  that  he would not give Trooper Coxs testimony  any  more

weight  than  that  of the other witnesses.   Furthermore,  Judge

Jahnke admonished both Fulk and Trooper Cox that they were not to

discuss  the case.  Trooper Cox later stated in a sworn affidavit

that he and Fulk did not discuss the case with one another during

the  trial.   Bryant  did  not plead  any  facts  to  rebut  this

evidence.

          As  stated above, an ineffective assistance of  counsel

claim must include an allegation of prejudice, an allegation that

counsels  mistake  contributed  to the  defendants  conviction.24

Bryant  did not plead any prejudice.  Various pleadings filed  by

the  State  over the course of the years that Bryants motion  was

pending   pointed  out  the  requirement  that   an   ineffective

assistance  of counsel claim include an allegation of  prejudice.

These pleadings also pointed out that Bryant had not alleged  any

prejudice  regarding  Fulks presence on the jury.   Nevertheless,

Bryant  did not discuss the States point in any of his pleadings,

or cite any contrary authority.

          Now, on appeal, Bryant asserts that [a]llowing a biased

juror   to  remain  on  the  jury  panel  violated  Mr.   Bryants

          constitutional rights to an impartial jury.  Bryant cites Dyer v.

Calderon25  as  support  for this assertion.   But  the  majority

opinion  in that case concluded that a juror at Dyers  trial  had

lied  when initially answering voir dire questions to ensure that

she  was  selected  for the jury, and again lied  when  questions

about  her impartiality were raised before the penalty  phase  of

her trial to ensure that she remained on the jury.26  Because this

juror   lied   repeatedly   about   matters   relating   to   her

qualifications to serve, the majority presumed that the juror was

biased.27

          Bryant did not claim that Fulk lied during voir dire or

concealed  any  pertinent information about his qualification  to

serve.   Instead, Bryant argues that Fulks voir dire  established

that  Fulk was a biased juror.  But viewed as a whole, Fulks voir

dire  testimony  does  not establish a  record  that  permits  an

appellate court to presume that Fulk was a biased juror.

          Bryant also cites Hughes v. United States.28  In Hughes,

the  appellant claimed he had received ineffective assistance  of

counsel  because his attorney did not ask any follow-up questions

or  challenge  a  prospective juror for  cause  after  the  juror

testified during voir dire that she did not think that she  could

be a fair juror.29   Because the record showed that the juror said

she  could not be fair, the majority of the Hughes court presumed

that  the juror was biased and found that counsel was objectively

unreasonable  for not asking the juror any follow-up questions.30

The  majority also concluded that there was a complete  lapse  by

the trial court ... in carrying out its obligation on voir dire.31

          Bryants  case  contrasts with  the  record  in  Hughes.

Bryants attorney, the prosecutor, and Judge Jahnke all questioned

Fulk.   Bryants attorney questioned Fulk about his  contact  with

Trooper Cox and whether he would give Coxs testimony more  weight

than  other witnesses.  After receiving Fulks assurances that  he

would  not  give  Coxs  testimony  any  more  weight  than  other

witnesses, and after Fulk had testified that he would decide  the

          case based on the evidence presented at trial, Bryants attorney

waived any challenge for cause against Fulk.

          Finally, Bryant relies on a quote from State v. Miller:32

          Actual  bias can be shown either by a  jurors

          own  admission or by proof of specific  facts

          which show the juror has such a prejudice  or

          connection  with the parties  at  trial  that

          bias is presumed.[33]

But  this quote from Miller is contained in a discussion of  what

factors  a  trial judge must consider when a party  challenges  a

juror  for cause.  As we have noted several times already, Bryant

did not challenge Fulk for cause.

          Furthermore, Bryants claim begs the question of whether

Fulk  was  a biased juror.  During voir dire, Fulk explained  his

connection to Trooper Cox, and the parties and the court explored

his  ability to serve on the jury.  Under Criminal Rule 24(c),  a

party can challenge a prospective juror for any of the enumerated

reasons in Rule 24 including (c)(2), that the juror is biased for

or  against  a  party or attorney.  But Bryant did not  challenge

Fulk, so the superior court never ruled that Fulk was biased.

          Moreover, Bryant alleged no facts to show that Fulk was

a  biased juror while litigating the motion for a new trial,  nor

did  he  allege any facts to show that Fulks service on the  jury

resulted  in  an unfair trial.  In a separate claim,  Bryant  did

allege that Fulk had committed misconduct by discussing the  case

with  Trooper Cox in a courthouse elevator during the trial,  but

Judge  Zervos rejected that claim after the evidentiary  hearing,

finding  that the alleged misconduct had never happened.   Bryant

has  not  challenged this ruling.  Other than that one misconduct

allegation, Bryant did not claim that Fulk violated any of  Judge

Jahnkes  admonishments or in any other way engaged in  misconduct

during his service as a juror.

          Finally,  as  we  just noted, Bryant did  not  show  or

attempt  to  show that Fulk  was unfair or that some other  juror

          was unfair as a result of Fulks presence on the jury.34  Nor did

Bryant claim that any violation of a jurors duty led to an unfair

trial.35

          Bryant  has  not established that he was prejudiced  by

his  trial  attorneys decision not to challenge Fulk.  Therefore,

Judge Jahnke did not err in dismissing Bryants claim that he  was

entitled  to  a  new  trial because his trial  attorney  did  not

attempt to discharge juror Fulk.

          Moreover, Judge Jahnke dismissed Bryants claim  on  the

ground that Bryant had not pleaded how he was prejudiced by Fulks

jury  service.   In  addition,  the  record  shows  that  Bryants

attorney elected not to challenge Fulk.  When an attorney makes a

tactical  choice,  a  party  claiming ineffective  assistance  of

counsel  must  plead facts that demonstrate that the  tactic  was

unreasonable, that is, that the tactic was one that no  competent

attorney would use.36

          

          The trial attorneys failure to subpoena Joe Schacher

          Bryant  next claims that Judge Zervos erred in  finding

that  his trial attorney had not been ineffective for failing  to

subpoena Joe Schacher to testify at the second trial or,  in  the

alternative, after Schacher failed to appear at the second trial,

to  offer  Schachers testimony from Bryants first  trial  at  the

second trial.

          Judge Zervos found that Bryants trial attorney had  not

been  ineffective in failing to subpoena Schacher, Bryants  great

nephew,  to  the second trial.  Judge Zervos found that  Schacher

had appeared to be cooperative with the defense before the second

trial, and that it had not been clear that his testimony would be

necessary.  Judge Zervos also found that, once it became  obvious

that   Schacher  might  not  voluntarily  appear,  Bryants  trial

attorney took competent steps to secure his attendance by issuing

a subpoena and attempting to have it served on Schacher.

          In  Bryants  trial attorneys deposition,  the  attorney

testified  about his failure to subpoena Schacher to  testify  at

Bryants second trial.  The attorney stated that Schacher had been

present  to  testify  at the first trial, and  that  he  had  not

anticipated  problems in obtaining Schachers  testimony  for  the

second  trial.  Bryants  trial attorney knew  that  Schacher  and

Bryant  were  close and that Bryant had done several  favors  for

Schacher.  In addition, the trial record indicates that  Schacher

had actually been residing in Bryants home until the night before

he  was  scheduled to testify, and that Bryant  had  assured  his

trial  attorney that Schacher would be available for  trial.  The

trial  record  also  indicates that when Bryants  trial  attorney

realized  that Schacher would not appear for trial as  scheduled,

the  attorney  asked for a continuance, obtained a subpoena,  and

employed  a process server to attempt to serve Schacher with  the

subpoena.

          In  order  to  prove  that Bryants trial  attorney  was

ineffective  for  failing  to  subpoena  Schacher,  Bryant   must

demonstrate  that  no  reasonably competent attorney  would  have

performed as his attorney did.37  The evidence indicates that the

attorney  had  reason to believe that Schacher would  voluntarily

appear  at  trial and that when it became clear that this  belief

was  mistaken,  the  attorney attempted  to  compel  Schacher  to

testify  by  serving  him  with  a  subpoena.   Bryant  did   not

demonstrate  that no competent attorney would have acted  as  his

trial attorney did.  Thus, Judge Zervos did not err when he found

that  the  trial  attorney  was not ineffective  for  failing  to

subpoena Schacher to testify at Bryants second trial.

          Judge  Zervos  did  not issue a ruling  on  the  second

component  of  Bryants  claim  that Bryants  trial  attorney  was

ineffective for failing to offer Schachers testimony at the first

trial  into evidence at the second trial.  Normally, an appellant

may only appeal issues on which he has obtained an adverse ruling

from the trial court.38  The record reflects that Bryant failed to

request  a  ruling on the question of whether his trial attorneys

failure  to  offer  Schachers  testimony  at  the  second   trial

constituted ineffective assistance.  Therefore, Bryant has waived

this issue for purposes of appeal.39



          The  trial attorneys decision not to call Jim Lewis  to

          testify

          Bryant next claims that Judge Zervos erred in rejecting

his claim of ineffective assistance of counsel based on his trial

attorneys decision not to call Jim Lewis as a witness at  Bryants

second  trial.  Bryant  claims that Lewis could  testify  to  two

pieces of information that were pivotal to his defense  (1)  that

Wickline  had reported that A.M. alleged that Bryant was sexually

abusing  her  one month before the allegations were  reported  to

state  troopers  and (2) that Wickline had told  Lewis  that  she

intended to take [Bryant] for everything he had.

          This  issue  may turn on a factual dispute  that  Judge

Zervos  did  not resolve.  Bryant claimed that his attorney  knew

          the substance of Lewiss testimony that Bryant argues his attorney

should have presented.  However, the trial attorney contended  in

his  deposition that he considered calling Lewis  for  a  limited

purpose,  as  a  rebuttal witness in the event the State  offered

evidence  about  a  prior  bad act  that Bryant  had  purportedly

molested  one  of  Lewiss daughters while camping.   Because  the

State  did  not offer evidence of that purported misconduct,  the

trial attorney decided that there was no need to call Lewis.  The

attorney  did not recall interviewing Lewis about his claim  that

Wickline  had  told him earlier about the abuse and  expressed  a

plan to ruin Bryant financially.

          It  is not clear from Judge Zervoss decision whether he

implicitly found that the trial attorney knew of Lewiss testimony

that could potentially impeach Wickline.  If Bryants attorney did

not know of Lewiss testimony, then this claim fails.  (Bryant did

not  allege  that  his  attorney incompetently  investigated  the

case.)

          Even so, Judge Zervos found that the trial attorney had

made  a  mistake  in  failing to offer Lewiss  testimony  because

Lewiss  potential  testimony  would have  supported  the  defense

theory.   But it is not apparent from our review of Judge Zervoss

decision  what  type  of mistake Bryants attorney  made,  because

effective  assistance  of counsel does not  guarantee  error-free

representation.  In order to constitute ineffective assistance of

counsel, a trial attorneys performance must fall below the  nadir

of  the range of competence of attorneys of ordinary training and

skill   in  criminal  law.40   This  analysis  requires  a  court

considering  an incompetence claim to compare the performance  of

the trial attorney with the standard of competence  the range  of

reasonable actions that might be taken by an attorney of ordinary

training  and  skill in criminal law.41  The findings  must  also

address  how  a  trial attorney failed to meet that  standard  of

care, and must discuss the facts that rebut the presumption  that

the  trial  attorneys decisions were grounded in  sound  tactical

considerations.42  If the defendant convinces the court that  the

attorney  failed  to  perform  competently,  the  defendant  must

additionally  demonstrate that there is  at  least  a  reasonable

possibility that the attorneys lack of competency contributed  to

the defendants conviction.43

          Bryants  attorney made the tactical choice not to  call

Lewis.   To  prevail on his ineffective assistance claim,  Bryant

must  affirmatively  rebut the strong presumption  of  competence

that  attaches to an attorneys tactical choices.44  Thus,  Bryant

was  obliged  to  plead and to prove that no  competent  attorney

would have decided not to call Lewis.45

          Judge  Zervos  did not enter specific findings  on  the

issues  of the standard of competence of an attorney of  ordinary

training  and  skill  in criminal law and how  Bryants  attorneys

performance  fell  below the nadir of that  range.   Furthermore,

Judge  Zervos did not enter findings on what evidence Bryant  had

presented  that  overcame  the  presumption  of  competence  that

attached to the attorneys decision not to call Lewis.

          Although  Judge  Zervos  concluded  that  it  was   not

reasonably  possible  that the trial attorneys  failure  to  call

Lewis  as  a  witness had contributed to Bryants conviction,   we

must  have  Judge Zervoss findings on the first Risher  prong  to

consider  Bryants claim properly.  Therefore, we must remand  the

case for the findings that we discussed above.

     

          The failure to offer Bryants Navy SEAL Certificate into

          evidence

          Finally,  we  address Bryants claim that  Judge  Zervos

improperly  rejected  his claim that he had received  ineffective

assistance because his trial attorney did not offer in evidence a

certificate  indicating that Bryant had gone  through  Navy  SEAL

training.  On this issue, Judge Zervos also found that the  trial

attorney had made a mistake in failing to offer the certificate.

          Judge  Zervos  did  not provide any findings  comparing

          Bryants trial attorneys performance with the standard of practice

of  a  competent  attorney, nor specify what facts  overcome  the

presumption  of  competence that attaches to  a  trial  attorneys

tactical choices.

          Judge  Zervos did rule that the trial attorneys failure

to  offer  the certificate had not prejudiced Bryant.  Apparently

Judge Zervos thought that the certificate would likely have  been

ruled inadmissible hearsay, and even if it had been admitted, the

certificate would have played a very small role in the trial.

          Bryant,  as the proponent of the certificate,  had  the

obligation to show that the certificate was admissible.   If  the

certificate  was  not admissible, then that resolves  the  issue,

because  it  is  not  ineffective assistance  to  fail  to  offer

inadmissible evidence.  Because of these potential ambiguities in

Judge  Zervoss  decision, we must remand the case for  additional

findings in order to properly consider Bryants claims.



          Conclusion

          We  affirm the superior courts evidentiary rulings.  We

remand the case to the superior court for additional findings  on

the  ineffective  assistance  claims  we  discussed  above.   The

superior  court shall transmit its additional findings within  75

days.   When  the  superior  court transmits  its  findings,  the

parties  shall  have  30  days to submit  simultaneous  memoranda

addressing those findings.  We retain jurisdiction.

MANNHEIMER, Judge, concurring.


          I  write separately to explain the facts pertaining  to

the   issue  of  whether  Bryants  trial  attorney  should   have

peremptorily challenged Juror Fulk.

          As described in the lead opinion, the record shows that

Juror  Steven  Fulk  was a good friend of the main  investigating

officer in Bryants case, Trooper Robert Cox.  In previous  years,

when Cox lived in Ketchikan, the two men attended the same church

and went fishing together.  By the time of Bryants trial, Trooper

Cox  had  been transferred away from Ketchikan, but Cox and  Fulk

remained friends.  Cox stayed with the Fulk family during Bryants

trial.

          Even though Juror Fulk declared that he could set aside

his  friendship  with Cox, and that he could  fairly  weigh  Coxs

testimony along with the other evidence in the case, Fulks  close

friendship with Cox would seemingly counsel any defense  attorney

to get rid of Fulk.  However, Fulks answers during voir dire also

revealed  a  reason why he might be considered a favorable  juror

for the defense.

          During  voir  dire, Fulk described in  an  incident  in

which  a  close  family member was suspected of sexually  abusing

Fulks  son.   Fulk  stated that he still  was  not  sure  whether

anything  improper  had  happened, but no  prosecution  was  ever

pursued,  and  he  was still on speaking terms with  this  family

member.   Fulk  declared  that, based on this  incident,  he  had

learned the lesson that, while children might have a good  reason

for  complaining  about an adults actions,  the  complaint  might

arise from the childs misunderstanding of innocent conduct.

          Fulks  experience  the fact that a member  of  his  own

family  had been suspected of sexual abuse, based on an  apparent

misunderstanding  was a good reason why a defense attorney  might

want  to  keep  Fulk  on  the jury in Bryants  case.   Thus,  the

ultimate decision facing Bryants attorney  to challenge Fulk,  or

to  leave  him  on the jury  rested on weighing Fulks  friendship

with Trooper Cox against Fulks prior experience with an unfounded

accusation  of sexual abuse against a family member.  Faced  with

this  quandary, a defense attorney could reasonably  decide  that

the  potential benefit of leaving Fulk on the jury outweighed the

risk stemming from Fulks friendship with the trooper.



_______________________________
     1  AS 11.41.434(a)(1).

     2  See Hoffman v. State, 950 P.2d 141, 146 (Alaska App.
1997).

     3  Heath v. State, 849 P.2d 786, 788 (Alaska App. 1993)
(citations omitted).

     4  703 P.2d 436 (Alaska App. 1985).

     5  Id. at 442.

     6  54 P.3d 332 (Alaska App. 2002).

     7  Id. at 339.

     8  Id. at 336.

     9  Salud v. State, 630 P.2d 1008, 1011 (Alaska App. 1981).

     10  See Heath, 849 P.2d at 788.

     11  76 P.3d 398, 416-17 (Alaska App. 2003).

     12  Alaska App. Memorandum Opinion and Judgment No. 4846 at 6-
7 (Mar. 31, 2004), 2004 WL 719626 at *3-4.

     13  Id. at 6, 2004 WL 719626 at *3.

     14  Id. at 6-7, 2004 WL 719626 at *3-4.

     15  See Tall v. State, 25 P.3d 704, 708 (Alaska App. 2001).

     16  5 P.3d 888, 889 (Alaska App. 2000).

     17  Id. at 889 (quotation omitted).

     18  Id.

     19  848 P.2d 267 (Alaska App. 1993).

     20  Id. at 268-69.

     21  Id. at 269.

     22  Id. at 270.

     23  Id., quoting Sirotiak v. H.C. Price Co., 758 P.2d 1271,
1277 (Alaska 1988).

     24  State v. Jones, 759 P.2d 558, 572-73 (Alaska App. 1988).

     25  151 F.3d 970 (9th Cir. 1998).

     26  Id. at 979.

     27  Id. at 983.

     28  258 F.3d 453 (6th Cir. 2001).

     29  Id. at 456-57.

     30  Id. at 462.

     31  Id. at 464.

     32  476 S.E.2d 535 (W. Va. 1996).

     33  Id. at 552.

     34  See Hammock v. State, 52 P.3d 746, 750 (Alaska App.
2002); Minch v. State, 934 P.2d 764, 769 (Alaska App. 1997).

     35  See West v. State, 409 P.2d 847, 852 (Alaska 1966).

     36  See State v. Laraby, 842 P.2d 1275, 1279 (Alaska App.
1992).

     37  See Jones, 759 P.2d 568.

     38  See, e.g., Mahan v. State, 51 P.3d 962, 966 (Alaska App.
2002).

     39  See id.

     40  See Risher v. State, 523 P.2d 421, 424 (Alaska 1974).

     41  See State v. Zeciri, 43 P.3d 169, 171 (Alaska App. 2002).

     42  Id.

     43  See Risher, 523 P.2d at 425.

     44  See Jones, 759 P.2d at 569-70.

     45  See Tucker v. State, 892 P.2d 832, 835 (Alaska App.
1995).