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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
KORAKANH PHORNSAVANH,
Court of Appeals No. A-12499
Appellant, Trial Court No. 3AN-13-06468 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2691 - February 5, 2021
Appeal from the Superior Court, Third Judicial District,
Anchorage, Michael L. Wolverton, Judge.
Appearances: Kelly R. Taylor, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Timothy W. Terrell, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney
General, Juneau, for the Appellee.
Before: Allard, Chief Judge, Harbison, Judge, and Suddock,
*
Senior Superior Court Judge.
Judge ALLARD.
* Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
----------------------- Page 2-----------------------
Korakanh Phornsavanh wasconvicted,followingajurytrial, offirst-degree
murder for fatally shooting Said Beshirov during a street brawl outside an Anchorage
nightclub. He now appeals that conviction, raising three claims of error.
Phornsavanh's first claim is that the superior court erred when it failed to
provide a defense-requested instruction on eyewitness identification. For the reasons
explained in this opinion, we reject this claim.
Phornsavanh's two other claims relate to various evidentiary weaknesses
in the State's case against him. Citing eyewitness testimony that pointed to a different
man as the shooter, Phornsavanh argues that the evidence presented at trial was legally
1
insufficient to support his conviction.
In the alternative, Phornsavanh argues that the
jury's verdict was against the weight of the evidence and that the superior court erred in
2
Phornsavanh also
failing to grant his motion for a new trial in the interest of justice.
argues that the superior court failed to apply the correct legal standard when it evaluated
his motion for a new trial based on the weight of the evidence.
For the reasons explained in this opinion, we conclude that the evidence at
trial waslegally sufficient tosupportPhornsavanh's conviction. However, weagreewith
Phornsavanh that the superior court failed to apply the correct legal standard when it
evaluated Phornsavanh's motion for a new trial. Accordingly, we remand this case to
the superior court for reconsideration of Phornsavanh's motion for a new trial under the
correct legal standard.
1 See Alaska R. Crim. P. 29; see also Jackson v. Virginia, 443 U.S. 307, 317 (1979).
2 See Alaska R. Crim. P. 33(a).
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Background facts and prior proceedings
On October 28, 2012, PlatinumJaxx, a nightclub in downtown Anchorage,
hosted a Halloween party. Around 2:30 a.m., the nightclub closed and ushered its
patrons out onto the street. Many of the patrons were in costume; many were also
intoxicated.
Among the patrons leaving the club was twenty-five-year-old Korakanh
Phornsavanh. Phornsavanh was wearing a red hooded sweatshirt, a red baseball cap, and
black and white face paint. Phornsavanh is 5 feet 6 inches tall.
Alsoamong thepatrons was agroup offour friends: AnthonyXayavongsy,
his brother Blandy, and their friends Victor Senethep and Dellon Vongphrachanh.
Xayavongsy and Vongphrachanh were both dressed as cowboys, with matching long-
sleeved white shirts, black vests, and cowboy hats. Xayavongsy, who is 5 feet 9 inches
tall, wore a red bandanna; Vongphrachanh, who is 6 feet 1 inch tall, wore a blue
bandanna. Xayavongsy's brother Blandy wore a Nixon mask; Senethep wore a Reagan
mask.
The victim in this case, Said Beshirov, also departed from the club.
Beshirov, who was 5 feet 9 inches tall, was not wearing a costume. Instead, he was
wearing a lightweight red puffer jacket.
As the patrons congregated outside the nightclub, a street brawl broke out.
The brawl eventually fractured into two fights, which two patrons filmed with their cell
phones. The beginning of the brawl was also captured on the nightclub's surveillance
video.
Thecell phone and surveillance videos showan incompleteversion ofwhat
happened. In the surveillance video, Phornsavanh can be seen shoving a man in a
construction vest. Soon afterwards, Blandy can be seen on the same video, throwing a
woman in a yellow dress to the ground. The first cell phone video starts with the woman
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in the yellow dress on the ground and shows Xayavongsy punching another woman in
a black costume in the face; she also falls to the ground. The first cell phone video also
shows Vongphrachanh and Senethep punching and then kicking a man in a superhero
costume. Phornsavanh can be seen punching a man in a plaid shirt in the head from
behind and then trading blows with Beshirov after Beshirov intervenes in the fight. The
fight fractures into two groups at this point, and the second cell phone starts recording,
showing Phornsavanh scuffling with the man in the plaid shirt and then exchanging
punches with Beshirov. The second cell phone video then pans to the left to focus
briefly on the other fight.
Shortly thereafter, the second cell phone video pans back to the right. On
the video, Beshirov can be seen facing Xayavongsy and Senethep, who are standing on
the sidewalk. Xayavongsy, who is holding a cowboy hat in his right hand, is gesturing
with that arm pointed straight at Beshirov. Beshirov is walking toward Xayavongsy and
holding both hands in the air in a placating manner.
On the left side of the frame in the second video, Phornsavanh can be seen
moving quickly toward Xayavongsy, with his upper body angled toward Beshirov.
Phornsavanh's right arm is close to his side. The still-frame exhibits of the video show
a black shadow or spot on Phornsavanh's right hand that the prosecutor argued was a
gun. Xayavongsy can be seen lowering his right arm, then quickly re-raising it and
turning to look at Phornsavanh as Phornsavanh gets closer. Just as Xayavongsy re-raises
his right arm again toward Beshirov, the video pans away. It is not clear from the video
whether Xayavongsy is still holding his cowboy hat in his right hand or if he is holding
something else.
Less than a second after the video pans away, two gun shots can be heard.
Neither cell phone video captures the actual shooting. Following the shots, the second
video pans back to show Beshirov lying on the street, bleeding from multiple wounds.
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Beshirov died at the scene. A medical examination would later determine
that one of the bullets went through Beshirov's hand and entered his head, while the
other bullet hit him in the upper chest. A ballistics expert would later testify that the
bullets came from a .380 caliber gun, which is small enough to rest in the palm of a
man's hand.
Immediately after the shots were fired, Xayavongsy, Blandy, Senethep and
Vongphrachanh left the scene, driving the wrong way down a one-way street and
discarding parts of their costumes along the way. Phornsavanh also left the scene in a
different car.
The police interviewed multiple eyewitnesses to the shooting. Most of
these eyewitnesses were intoxicated.
Theeyewitnesses wereinconsistentin their descriptions of theshooter. For
example, most oftheeyewitnesses identifiedtheshooter as Asian,but other eyewitnesses
identified him as Samoan, Alaska Native, or Black. (Xayavongsy and Phornsavanh are
both Asian, although Phornsavanh's facial features were somewhat obscured by the
black and white face paint.) Some eyewitnesses described the shooter as having short
black hair. (Both Xayavongsy and Phornsavanh have short dark or black hair, although
Phornsavanh's hair was obscured by his baseball cap.) Some eyewitnesses described the
shooter as having a long, dark ponytail. (Vongphrachanh has a long, dark ponytail.)
The eyewitnesses were also inconsistent about what the shooter was
wearing. Many of the eyewitnesses described the shooter as wearing a long-sleeved
white shirt with a black vest. (As part of their cowboy costumes, both Xayavongsy and
Vongphrachanh were wearing long-sleeved white shirts and black vests.) Two
eyewitnesses described the shooter as wearing "dark clothing" without referring to any
white shirts. The shooter was also described as wearing a gray zip-up hoodie, a white
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tank top and jeans, or a dark brown sweater. At the time of the shooting, none of the
eyewitnesses described the shooter as wearing red.
The eyewitnesses were inconsistent about the height and weight of the
shooter. Several of the eyewitnesses described the shooter as similar height and build
as the victim, who was 5 feet 9 inches tall with a medium build. (Xayavongsy is 5 feet
9 inches tall with a medium build.) However, three eyewitnesses described the shooter
as at least 6 feet tall and 200 pounds. (Vongphrachanh is 6 feet 1 inch tall and 225
pounds.) And one eyewitness described the shooter as 5 feet 6 inches or 5 feet 7 inches
tall. (Phornsavanh is 5 feet 6 inches tall.)
One eyewitness told the police that Vongphrachanh was the shooter.
However, she later testified at trial that she could not remember the shooting and was
guessing when she initially named Vongphrachanh.
The police were later able to exclude Vongphrachanh and Blandy
(Xayavongsy's brother) as suspects based on the first cell phone video, which showed
Vongphrachanh and Blandy engaged in a separate fight when the shots were fired.
Based on the eyewitness descriptions and an initial review of the cell phone
videos, the police initially focused their attention on Xayavongsy as their prime suspect.
Xayavongsy fit several of the descriptions, and the second cell phone video showed
Xayavongsy in an apparent verbal altercation with the victim seconds before the
shooting. The police did not initially consider Phornsavanh a suspect because none of
the eyewitnesses had described the shooter as wearing red clothes, a red baseball cap, or
black and white face paint.
As part of their investigation, the police interviewed Phornsavanh.
Phornsavanh was evasiveduringthis interview, and heinitially lied about being involved
in the street brawl. However, after being confronted with the video evidence of his
involvement in the brawl, Phornsavanh admitted to being at the scene, although he
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----------------------- Page 7-----------------------
denied shooting Beshirov or knowing who did. Phornsavanh acknowledged that he was
only feet away from Beshirov when he was shot, but he maintained that he did not know
who shot Beshirov because he was looking at Beshirov at the time of the shooting.
The police also interviewed Xayavongsy. Xayavongsy, like Phornsavanh,
denied shooting Beshirov or knowing who did.
At trial, the State was unable to locate Senethep, Xayavongsy's friend who
was standing next to Xayavongsy at the time of the shooting. In the video, Senethep,
who was wearing a Reagan mask, can be seen looking at Xayavongsy and Phornsavanh
and then shifting his weight to one foot as if to run in the seconds before the shooting.
The State was also unable to locate Vongphrachanh, who left the scene in
a vehicle with Xayavongsy, Blandy, and Senethep. Blandy testified at trial and denied
knowing who the shooter was.
At some point, the police shifted their attention from Xayavongsy to
Phornsavanh as the main suspect. Phornsavanh was later arrested and charged with first-
and second-degree murder.
At the initial grand jury, the State failed to introduce the eyewitness
testimony, which tended to exculpate Phornsavanh, and the superior court dismissed the
indictment for failure to present exculpatory evidence. Phornsavanh was subsequently
re-indicted on the same charges, and the case went to a jury trial.
The evidence at trial
At trial, the State's case primarily consisted of the two cell phone videos,
and three expert witnesses.
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The cell phone videos
The State's case against Phornsavanh relied chiefly on the second cell
phonevideo, which showed theverbal encounter between Xayavongsy and Beshirov and
the movements of Xayavongsy and Phornsavanh in the seconds before the shooting. The
jury was provided with a playback device enabling the jury to watch the video in slow-
motion or frame-by-frame. The jury was also given numbered print-outs of the
individual frames.
The prosecutor argued that the video showed Phornsavanh carrying a gun
and moving with deliberation to the position where he shot Beshirov. Specifically, the
prosecutor argued that (1) a black mark that appears in Phornsavanh's hand in some of
the frames was the gun; (2) Phornsavanh's abnormal stride showed that he was carrying
a gun; (3) Senethep and Xayavongsy were looking at Phornsavanh and stepping back,
which was consistent with Phornsavanh carrying a gun; and (4) Phornsavanh was
looking at Beshirov and angling his body toward him, which showed that he was
targeting Beshirov. The prosecutor also argued that Phornsavanh had a motive to shoot
Beshirov because Beshirov had just bested him in a fist fight captured on the cell phone
videos.
Unlike the prosecutor, the defense attorney emphasized the eyewitness
testimony at the scene, none of which inculpated Phornsavanh and some of which
inculpated Xayavongsy. The defense attorney also disputed the prosecutor's
interpretation of the second cell phone video. For example, the defense attorney argued
that the black shadow identified by the prosecutor as a gun in Phornsavanh's hand was
actually the result of lighting and video quality, and the defense attorney pointed to other
individuals in the video who appeared to have similar black spots on their hands.
The defense attorney argued that the second cell phone video actually
showed that Xayavongsy was the shooter - a version of events that he pointed out was
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more consistent with the eyewitness testimony. The defense attorney focused the jury's
attention on the last clear frame in the video before the camera panned away and the
shooting occurred. This frame shows Xayavongsy facing Beshirov with his right arm
raised in a shooting position. Xayavongsy has something indiscernible in his right hand,
which the prosecutor argued was the cowboy hat but the defense attorney argued was a
gun. According to the defense attorney, Xayavongsy had shifted his hat to his left hand
so that he could pull out a gun, and the defense attorney pointed to a place in the video
where Xayavongsy lowers his arm and Phornsavanh's body obscures Xayavongsy's
body as the moment when Xayavongsy switched his hat to his left hand and then took
out his gun with his right hand. The defense attorney further argued that the outline of
Xayavongsy's hat could be seen in his left hand in the last frame of the video before it
panned away.
The State's eyewitness identification expert
At trial, the State introduced testimony from the various eyewitnesses,
mainly to discredit that testimony. As already mentioned, prior to trial, none of the
eyewitnesses identified the shooter as wearing red. Instead, various eyewitnesses
reported that the shooter was of the same height and build as Xayavongsy and wearing
clothes that were similar to the clothes worn by Xayavongsy.
In discrediting the reliability of the eyewitness descriptions, the prosecutor
relied heavily on the testimony of Dr. Geoffrey Loftus, an expert in memory and
eyewitness identification who typically testifies in favor of the defense in criminal trials.
Dr. Loftus described several factors that can affect the formation of memory, including
duration of the event, attention, lighting conditions, alcohol, stress, and post-event
circumstances. According to Dr. Loftus, the longer the duration of an event, the better
the witness's memory of the event because the witness has more time to consciously
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observe details. Dr. Loftus also explained that stress can be an especially distorting
influence on memory, because stress inhibits the formation of memory and can also
engender a falsely vivid memory as a witness revisits the stressful incident in their head
or with others.
According to Dr. Loftus, many of the factors that adversely affect memory
were present in this case. The shooting here was unexpected, shocking, and extremely
short in duration. And while the parties disagreed as to the quality of lighting conditions,
it was undisputed that it was nighttime and that the only illumination came from
streetlights, nearby businesses, and cars. It was also undisputed that many of the
eyewitnesses were intoxicated.
Dr. Loftus also provided testimony that was helpful to Phornsavanh's
defense. Dr. Loftus testified that, as a general matter, a witness's first reporting is the
most accurate. According to Dr. Loftus, if multiple witnesses provide similar
independent accounts, these accounts are more likely to be accurate than independent
dissimilar accounts. Relying on this expert testimony, the defense attorney focused the
jury's attention on the commonalities in the eyewitness descriptions, and the fact that so
many eyewitnesses identified the shooter as Asian, 5 feet 9 inches tall with a medium
build, and wearing dark clothing, including a white shirt with a black vest - descriptors
that pointed to Xayavongsy as the shooter, not Phornsavanh.
The defense attorney also relied on Dr. Loftus's testimony regarding how
post-event information can contaminate an eyewitness's memory. This expert testimony
was helpful to the defense because one of the eyewitnesses - Daniil Bogdanov -
radically altered his description of the shooter at trial. In his statement to the police and
in his testimony to the grand jury, Bogdanov described the shooter as wearing blue jeans
and a basic shirt with a black body and white sleeves. Bogdanov's description of the
shooter was consistent with many of the other eyewitnesses' descriptions and was also
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consistent with Xayavongsy being the shooter; it was inconsistent with the State's theory
because Phornsavanh was wearing a red hooded sweatshirt and red baseball cap.
At trial, however, Bogdanov changed his description of the shooter.
Bogdanov testified that he changed his description based on an online newspaper article
that he read a few days before he testified. The article reported on the defense attorney's
opening statement, and it emphasized that none of the eyewitnesses had identified
Phornsavanh as the shooter. The article also included a link to the second cell phone
video. Bogdanov testified that he watched the video, and the video triggered "repressed
memories" of the event, causing him to now "remember" that the shooter was wearing
a red jacket or hooded sweatshirt with a red baseball cap. Bogdanov was the only
eyewitness who testified that the shooter wore red.
Relying on Dr. Loftus's expert testimony, Phornsavanh's defense attorney
attacked Bogdanov's "repressed memory," and argued that it was unreliable and tainted
by the news story and the cell phone video.
Significantly, the prosecutor did relatively little to rehabilitate Bogdanov's
credibility. Instead, the prosecutor argued that most, if not all, of the eyewitness
testimony was unreliable and that all of the eyewitnesses were generally mistaken about
what they saw or what they thought they saw.
The State's other expert witnesses
In addition to Dr. Loftus, the State presented two other expert witnesses -
Dr. Gary Zientek, the medical examiner, and Robert Shem, a firearms expert. The
prosecutor relied on these experts primarily to establish that the pool of suspects was
limited to Xayavongsy and Phornsavanh.
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Dr. Zientek, the medical examiner, testified that the trajectory of the bullets
was from left to right - i.e., the shooter was standing to the left of Beshirov. (Both
Phornsavanh and Xayavongsy appear to be to the left of Beshirov on the video.)
Dr. Zientek could not determine how far away the shooter was, other than to note that
the shooter was likely more than two or three feet away because there was no residue
around the entrance wounds.
Robert Shem, the firearms expert, testified that the shots came from a .380
caliber handgun. The gun was likely small enough to fit in the palm of a man's hand
without being seen and could easily be concealed in a waistband. Shem testified that he
could not tell where the shooter was standing based on where the bullet cartridges were
found at the scene because cartridges tend to bounce and roll on concrete and could have
been kicked if there were a lot of people in the area (as there were here). Additionally,
if the gun were held sideways (which one eyewitness reported), that could affect the
cartridge ejection patterns.
Xayavongsy's trial testimony
The State called Anthony Xayavongsy as a witness. Xayavongsy testified
that he was not the shooter, that he did not see the shooting, and that he did not know
who shot the victim. Xayavongsy testified that the fight started soon after he left the club
with his friends. He admitted that he punched a woman in the face because she got "in
[his] face." According to Xayavongsy, he was in the middle of the street brawl when all
of a sudden he heard gunshots. He did not know where the gunshots were coming from,
so he turned around and ran.
But after being confronted with the second cell phone video, Xayavongsy
admitted that he was the man standing on the sidewalk across from the victim.
Xayavongsy identified the object in his hand as a cowboy hat, and he maintained that he
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did not have a gun on him the night of the shooting. However, he testified that he did
not remember being on that sidewalk or having his arm outstretched. Xayavongsy also
testified that he did not recognize the man in the video in the red cap (Phornsavanh) or
the victim. He claimed to know nothing of the shooting, notwithstanding his proximity
to the event.
Xayavongsy testified that he "probably" knew Phornsavanh from the
Anchorage night life, but he claimed that he could not recall how often he saw
Phornsavanh around. When the prosecutor drew his attention to a video showing him
walking out of PlatinumJaxx with Senethep and Phornsavanh, Xayavongsy testified that
he did not remember leaving together and could not recall if he saw Phornsavanh that
night in the club. At other points in his testimony, Xayavongsy denied knowing
Phornsavanh "at all." Yet he later admitted that he had once been pulled over with
Phornsavanh in his car and that they knew each other through a mutual friend.
Phornsavanh's police interview
Phornsavanh did not testify at trial. However, the prosecutor played the
police interview in which Phornsavanh was initially evasive about his presence at the
scene, and the prosecutor argued that the interview demonstrated consciousness of guilt.
The pre-verdict motion for judgment of acquittal
At the close of the State's case, the defense moved for a judgment of
acquittal under Alaska Criminal Rule 29, arguing that the State had not presented
sufficient evidence to allow a reasonable juror to find Phornsavanh guilty beyond a
reasonable doubt. The court took this motion under advisement. When the defense
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rested, it renewed its motion for a judgment of acquittal. The court again reserved
judgment until after the verdict. 3
The jury's verdict and the post-verdict motion for a new trial
The jury deliberated for two-and-a-half days, during which time the jury
requested and received additional specialized equipment to magnify the cell phone video
and the still frames captured from the video. The jury subsequently found Phornsavanh
guilty of first-degree and second-degree murder.
After the jury reached its verdict, the defense reminded the court of the
outstanding motion for judgment of acquittal. The defense also filed a motion for a new
trial in the interest of justice under Alaska Criminal Rule 33, arguing that the jury's
verdict was contrary to the weight of the evidence.
The parties provided substantive briefing on both motions, and the court
heard oral argument on the motions. After considering the arguments, the superior court
denied both the motion for judgment of acquittal and the motion for a new trial in a six-
page written order.
At sentencing, the court merged the second-degree murder count into the
first-degree murder count and sentenced Phornsavanh to 65 years' imprisonment with
20 years suspended (45 years to serve).
This appeal followed.
Phornsavanh's eyewitness jury instruction claims
As previously mentioned, one of the eyewitnesses, Daniil Bogdanov,
changed his description of the shooter at trial. Prior to trial, Bogdanov had described the
3 See Alaska R. Crim. P. 29(b).
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shooter as Samoan, the same height and weight as Beshirov, wearing dark blue jeans and
a long sleeved shirt with white sleeves and a black body. This description suggested that
Xayavongsy was the shooter. At trial, however, Bogdanov described the shooter as
wearing a red hooded sweatshirt and red baseball cap. This description suggested that
Phornsavanh was the shooter. Bogdanov claimed that viewing the cell phone video a
few days before he testified helped him to remember what he actually saw. Bogdanov
was the only witness who identified the shooter as wearing red.
After Bogdanov testified, one of the jurors approached the judge in
chambers and asked, in the presence of the judge's law clerk and assistant, if witnesses
were subject to the same requirements as jurors - that is, whether witnesses were
prohibited from discussing the case or doing any independent investigation or research.
Later, when the court asked the juror to relay the question to the parties on record, the
juror stated he was concerned that "at least one witness . . . had actually gone out and
seen a video, and it ha[d] colored his opinion." The juror expressed his skepticism of
Bogdanov's changed description, and he asked the court whether the jury should accept
his statements.
After requesting that the juror not voice these concerns to the other jurors
at this stage, the court conferred with the parties regarding how to respond to the juror's
question. The defense attorney proposed an instruction that directed the jury to
Dr. Loftus's expert testimony:
You have heard that an eyewitness in this case, Daniil
Bogdanov, reviewed a cell phone video and media report of
opening statements in this trial prior to testifying. While that
conduct did not violate the law, it is something you should
consider in evaluating the credibility of Mr. Bogdanov's
current stated memory of the events of this case. You may
also consider the trial testimony of the State's own expert
witness, Dr. Geoffrey Loftus, as well as evidence of Mr.
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Bogdanov's previous stated memories and any other relevant
factors in evaluating the credibility of Mr. Bogdanov's
current stated memory.
The prosecutor objected to the defense's proposed instruction, and instead
offered a more generic instruction that directed the jury to the general witness credibility
instruction. The superior court adopted the State's proposed instruction with one small
change, and the jury was subsequently instructed as follows:
At the beginning of trial, the court gave you an instruction
regarding the conduct of jurors to guide you as jurors during
the course of the trial. The instruction included an
admonition not to view any outside media material
concerning the trial. Certain witnesses have testified that
they saw media accounts of the trial prior to testifying.
Witnesses in a trial are not given the same admonition by the
court as jurors, and there is no instruction or requirement that
they refrain from viewing media related to the case. A
witness who has viewed any media coverage of the trial has
not violated any court order or law. But you are to judge the
credibility of all witnesses using the factors outlined in
instruction number 5.
In adopting the State's proposed instruction, the court made clear that the defense was
still entitled to argue the points contained in the defense's proposed instruction to the
jury. And, indeed, the defense attorney argued these points during closing argument.
On appeal, Phornsavanh argues that it was reversible error for the superior
court to give the State's proposed instruction instead of the defense's proposed
instruction. But, as a general matter, as long as the jury is properly instructed on the law,
a trial court "has broad discretion to determine whether to give instructions specially
4
tailored to the case at hand."
Here, the instruction informed the jury that Bogdanov had
4 Young v. State, 374 P.3d 395, 405 (Alaska 2016) (quoting Power Construction, Inc.
(continued...)
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not broken any laws or court rules, and it directed the jury to assess the credibility of the
eyewitnesses for itself. As the court noted, the State's instruction answered the juror's
question and was a "fair response" to the jury's question.
Having reviewed the trial as a whole, we do not believe that such a generic
instruction would have had the effect of improperly "strengthening" Bogdanov's
testimony in the eyes of the jury, as Phornsavanh claims. Nor is there any evidence that
it was used that way by the prosecutor. To the contrary, the record shows that the
prosecutor did little to rehabilitate Bogdanov in the eyes of the jury. Instead, the
prosecutor's strategy was to argue that most, if not all, of the eyewitness testimony was
unreliable.
Given these circumstances, and given the fact that the defense attorney was
allowed to argue the points contained in the defense-requested instruction to the jury, we
find no abuse of discretion in the superior court's choice of instruction.
In his briefing on appeal, Phornsavanh also raises a separate, but related,
claim of plain error. Phornsavanh argues that the superior court erred in failing to give
a specialized eyewitness reliability instruction pursuant to the Alaska Supreme Court's
5
decision in Young v. State .
(We note that Young was decided after Phornsavanh's trial.)
In Young, the supreme court advised trial courts that, in cases where
eyewitnessidentification is asignificant issue, thetrial court "should issuean appropriate
6
jury instruction that sets out the relevant factors affecting [eyewitness] reliability." The
supreme court also made clear, however, that the absence of such a specialized
4 (...continued)
v. Taylor & Hintze, 960 P.2d 20, 29 (Alaska 1998)).
5 Young, 374 P.3d at 428.
6 Id .
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instruction is not automatic grounds for reversal. Instead, the reviewing court must
determine whether the defendant was actually prejudiced by the absence of such a
specialized instruction in a given case. 7
Here, we are confident that the absence of a specialized Young instruction
did not prejudice Phornsavanh. The purpose of such an instruction is to educate the jury
about factors that can affect eyewitness reliability because such factors are generally not
8
known to the public and are not necessarily matters of common sense. But, unlike most
juries, Phornsavanh's jury was well-informed about the factors that affect eyewitness
reliability. Dr. Loftus testified extensively regarding factors affecting reliability, and
both parties relied on Dr. Loftus's expertise.
Given this extensive expert testimony and the clear alignment of the parties
on the importance of this expert testimony, we find no prejudice in the failure to give a
specialized Young instruction.
Phornsavanh's claim that the evidence presented at trial was legally
insufficient or, in the alternative, that the jury's verdicts were against the
weight of the evidence
Phornsavanh argues that the evidence at trial was legally insufficient to
support his conviction and the superior court therefore erred in denying his motion for
judgment of acquittal. He argues, in the alternative, that the verdict was contrary to the
weight of the evidence and that the superior court erred in denying his motion for a new
trial. He also asserts that the superior court applied the wrong legal standard when it
decided his motion for a new trial.
We address Phornsavanh's sufficiency claim first.
7 Id. at 429-30.
8 Id. at 428.
- 18 - 2691
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Was the evidence presented at trial legally sufficient to convict
Phornsavanh?
Due process requires that the essential elements of a crime be proven
beyond a reasonable doubt. 9
Because "a properly instructed jury may occasionally
convict even when it can be said that no rational trier of fact could find guilt beyond a
reasonable doubt," the United States Supreme Court has held that the courts have a
constitutional duty to determine whether the evidence presented at trial is sufficient to
10
support the defendant's conviction.
Alaska Criminal Rule 29 is one means of protecting a defendant's
constitutional right to proof beyond a reasonable doubt. Under Criminal Rule 29(a), a
defendant may move for a judgment of acquittal at the close of the State's evidence or
11
at the close of all the evidence. The trial court is authorized to reserve decision on the
motion until after the jury returns with a verdict or the jury is discharged without having
12
returned a verdict. If the motion for judgment of acquittal is denied, the defendant may
renew the motion within five days after the jury is discharged and may include, in the
13
A defendant can also
alternative, a motion for a new trial under Criminal Rule 33.
challenge the sufficiency of the evidence for the first time on appeal as a claim of plain
9 See Jackson v. Virginia, 443 U.S. 307, 316 (1979); see also In re Winship, 397 U.S.
358, 372 (1970) (Harlan, J., concurring).
10 Jackson , 443 U.S. at 317-18; see also Esmailka v. State, 740 P.2d 466, 470 (Alaska
App. 1987) (noting that the Alaska rule regarding sufficiency of the evidence is in accord
with the constitutional requirements outlined in Jackson).
11
Alaska R. Crim. P. 29(a). The court may also grant a judgment of acquittal on its own
motion. Id.
12 Alaska R. Crim. P. 29(b).
13
Id.
- 19 - 2691
----------------------- Page 20-----------------------
14
error. Whether the evidence presented at trial is legally sufficient to support a
15
defendant's conviction is a question of law that we review de novo .
The standard a trial court must use to determine whether the defendant is
entitled to a judgment of acquittal is the same standard that applies to an appellate court's
consideration of a claim of insufficiency on appeal. In both instances, the court is not
permitted to reweigh the evidence or assess witness credibility - those are matters for
16
the jury to decide. Instead, the court must view all evidence presented at trial, and all
reasonable inferences to be drawn from that evidence, in the light most favorable to the
jury's verdict, and must then determine whether, viewing the evidence in this manner,
a fair-minded fact finder could find proof beyond a reasonable doubt on all essential
17
elements of the crime.
14 See Shafer v. State, 456 P.2d 466, 467-68 (Alaska 1969) (holding that the defendant
did not waive his right to question the sufficiency of the evidence by failing to move for a
judgment of acquittal and that a trial court commits plain error when it fails to enter a
judgment of acquittal in a case where the evidence is insufficient to sustain the conviction);
see also Alaska R. Crim. P. 29(a) (authorizing a trial court to grant judgment of acquittal "on
its own motion" even if the defendant did not move for judgment of acquittal).
15 See Des Jardins v. State, 551 P.2d 181, 184 (Alaska 1976).
16 See Ratliff v. State, 798 P.2d 1288, 1291 (Alaska App. 1990) ("[T]he weight and
credibility of evidence are matters for the jury to consider in reaching a verdict, not for the
reviewing court to decide in ruling on the legal sufficiency of the evidence.").
17 See Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008); Simpson v. State, 877
P.2d 1319, 1320 (Alaska App. 1994); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979).
We note that this standard is sometimes described as requiring the court to view "'only
those facts in the record most favorable to the prosecution.'" See, e.g., Dorman v. State, 622
P.2d 448, 453 (Alaska 1981) (quoting Martin v. City of Fairbanks 456 P,2d 462, 464 (Alaska
1969)). There is nothing inherently wrong with this formulation of the standard, provided
that it is interpreted to mean that the court must view all the evidence in the light most
favorable to the prosecution. See Jackson, 443 U.S. at 319 (emphasizing that judicial review
(continued...)
- 20 - 2691
----------------------- Page 21-----------------------
Thus, in the current case, we are required to resolve all the conflicts in favor
of the verdict and assume that the jury rejected almost all of the eyewitness testimony
as unreliable. We are also required to assume that the jury found Xayavongsy's trial
testimony credible. And we are required to assume that the jury found the State's
interpretation of the second cell phone video persuasive.
On appeal, Phornsavanh points to various reasons to doubt some of this
evidence. He argues, for example, that no reasonable fact-finder could find Bogdanov's
"recovered" memory credible. He also argues that no reasonable fact-finder could find
the shadow in Phornsavanh's hand to be a gun. But the jury did not need to believe,
beyond a reasonable doubt, that Bogdanov's "recovered" memory was reliable or that
the shadow was definitely a gun to convict Phornsavanh. There was other evidence that
could have constituted proof beyond a reasonable doubt, when viewed in the light most
favorable to upholding the verdict. That evidence included: (1) forensic evidence from
the ballistics expert and the medical examiner that tended to prove that the shooter had
to be either Phornsavanh or Xayavongsy; (2) Xayavongsy's testimony that he was not
the shooter; (3) expert testimony from Dr. Loftus establishing reasons to doubt the
accuracy and reliability of the contradictory eyewitness testimony; (4) video evidence
that showed purposeful body language that was consistent with Phornsavanh rapidly
approaching Beshirov as if preparing to turn and shoot him; (5) video evidence
suggesting that Phornsavanh would have been in the line of fire if Xayavongsy had been
17 (...continued)
includes "all of the evidence . . . in the light most favorable to the prosecution"). But because
this formulation could be misinterpreted as suggesting that the review need not include all
the evidence presented at trial, we discourage its use in future cases. See People v. Johnson,
606 P.2d 738, 751 (Cal. 1980) (noting that judicial review of the sufficiency of the evidence
that views only parts of the record in isolation would contravene the constitutional
requirements of Jackson).
- 21 - 2691
----------------------- Page 22-----------------------
the shooter; (6) video evidence of a dark shadow in Phornsavanh's hand that could be
a gun; (7) video evidence of Phornsavanh's motive to shoot Beshirov in retaliation of
Beshirov's recent pummeling of him; and (8) Phornsavanh's evasions in his interview
with the police.
Viewing all of this evidence in the light most favorable to upholding the
verdict, we conclude that a rational trier of fact could find Phornsavanh guilty beyond
a reasonable doubt, and the superior court therefore did not err when it denied his motion
for judgment of acquittal.
Was the jury's verdict contrary to the weight of the evidence?
A trial court's authority to grant a motion for a new trial if it finds the jury
verdict contrary to the weight of the evidence is derived from common law and is deeply
18
entrenched in both state and federal procedural law. As one leading treatise explains,
"far from being a denigration or a usurpation of jury trial, [the judge's power to set aside
19
the verdict] has long been regarded as an integral part of trial by jury as we know it."
As commentators and courts have noted, a trial judge "does not sit to approve
18 See Cassandra Burke Robertson, Invisible Error , 50 Conn. L. Rev. 161, 170 (2018)
("By the time of the 1768 publication of Blackstone's Commentaries on the Laws of England,
it was already well established that the judge could and should grant a new trial if convinced
that the jury's verdict was contrary to the 'clear weight' of the evidence. This responsibility
- often known as the 'thirteenth juror' rule - was incorporated into the early common law
of the original colonies, and subsequently became part of both state and federal procedure
throughout the United States.").
19 11 Mary Kay Kane, Wright & Miller Fed. Prac. & Proc. Civ. § 2806 (3d ed. 2020);
see also Smith v. Times Pub. Co., 36 A. 296, 309 (Pa. 1897) (Williams, J., concurring)
("[Jurors] are not, and have never been, independent of the court of which they are a part, but
their verdicts must meet the approval, or at least they must not offend the sense of justice, of
the presiding judge.").
- 22 - 2691
----------------------- Page 23-----------------------
miscarriages of justice," 20 and the authority to grant a new trial based on the weight of
the evidence "may be the only safeguard available against a miscarriage of justice by the
jury."21
Under Alaska Criminal Rule 33, a trial court is authorized to grant a motion
for a new trial "in the interest of justice" if the trial court finds that the jury's verdict is
22
contrary to the weight of the evidence. The decision to grant or deny a motion for a
23
new trial is entrusted to the sound discretion of the trial court. An appellate court will
24
overturn that decision only if it finds an abuse of discretion.
When a trial court rules on a motion for a new trial, it sits as a metaphorical
"thirteenth juror," independently weighing the evidence and evaluating for itself the
25
credibility of the witnesses. However, mere disagreement with the jury's verdict is not
20 11 Mary Kay Kane, Wright & Miller Fed. Prac. & Proc. Civ . § 2806 (3d ed. 2020).
21
6 Wayne R. LaFave, et al., Criminal Procedure § 24.6(d) at 86-87 n.51 (4th ed. 2020)
(citing State v. Ellis, 453 S.W.3d 889, 899 (Tenn. 2015)); see also United States v. Morales,
902 F.2d 604, 606 (7th Cir. 1990), amended, 910 F.2d 467 (7th Cir. 1990) (emphasizing that
"if the judge believes there is a serious danger that a miscarriage of justice has occurred -
that is, that an innocent person has been convicted - he has the power to set the verdict
aside, even if he does not think that he made any erroneous rulings at the trial").
22
Alaska R. Crim. P. 33 ("The court may grant a new trial to a defendant if required in
the interest of justice."); Amidon v. State , 565 P.2d 1248, 1262 (Alaska 1977); Howell v.
State, 917 P.2d 1202, 1212 (Alaska App. 1996).
23
See Hunter, 364 P.3d at 448 ("We commit this determination to trial courts' sound
discretion based on our trust in their position, expertise, and humility. History has indicated
that this trust is well deserved.").
24 Id. at 447; Dorman, 622 P.2d at 454.
25 Hunter v. Philip Morris USA Inc., 364 P.3d 439, 447 (Alaska 2015); Dorman, 622
P.2d at 454.
- 23 - 2691
----------------------- Page 24-----------------------
26
enough to invalidate a jury's verdict. A trial court's discretion to grant a new trial
27
should be exercised "when necessary to prevent injustice,"
but it is otherwise intended
28 29
to be used "sparingly and with caution." A jury verdict is not to be overturned lightly.
Although the authority of a trial court to grant a new trial on the ground that
the verdict was contrary to the weight of the evidence is clear, "[t]he standard that is to
30
control in passing on motions of this kind is not." Part of the difficulty is the "recurrent
tendency" of courts to confuse the standard for deciding a motion for a new trial based
on the weight of the evidence with the standard for deciding a motion for a judgment of
26 Hunter, 364 P.3d at 448.
27 Id. (quoting 12 James W. Moore, Federal Practice § 59.13[1], at 59-38 (3d ed.
2015)); see United States v. Parelius, 83 F. Supp. 617, 618 (D. Haw. 1949) ("If the judge sits
as a thirteenth juror . . . he should act in preventing injustice when deliberated discretion
prompts such act.").
28 See United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980) ("This authority
should be exercised sparingly and with caution; nevertheless, the trial court has wide
discretion in deciding whether to grant a new trial in the interest of justice."); 11 Mary Kay
Kane, Wright & Miller Fed. Prac. & Proc. Civ. § 2806 (3d ed. 2020) ("[A] decent respect
for the collective wisdom of the jury, and for the function entrusted to it in our system,
certainly suggests that in most cases the judge should accept the findings of the jury,
regardless of the judge's own doubts on the matter."); cf. Hunter, 364 P.3d at 448
("Experience has shown that there is little cause for concern about trial courts ordering new
trials too frequently: [s]uch orders are a distinct exception.").
29
Hunter, 364 P.3d at 448; Dorman, 622 P.2d at 454; see also 3 Sarah N. Welling,
Wright & Miller Fed. Prac. & Proc. Crim. § 582 (4th ed. 2020) ("The power to grant a new
trial [based on the weight of the evidence] should be invoked only in exceptional cases,
where the evidence weighs heavily against the verdict.").
30 11 Mary Kay Kane, Wright & Miller Fed. Prac. & Proc. Civ. § 2806 (3d ed. 2020).
- 24 - 2691
----------------------- Page 25-----------------------
acquittal.31 As already explained, when a trial court rules on a motion for judgment of
acquittal, the court is required to view the evidence - and all reasonable inferences
derived from that evidence - in the light most favorable to upholding the jury's
32
verdict. In contrast, when a trial court rules on a motion for a new trial based on the
weight of the evidence, the court must independently weigh the evidence and make its
33
own credibility determinations. Because of this, a court may set aside a verdict as
34
unjust even when the evidence is otherwise legally sufficient to support the verdict.
In the current case, Phornsavanh moved for a judgment of acquittal and he
also moved for a new trial on the ground that the guilty verdict was contrary to the
weight of the evidence. The superior court resolved both motions in a single written
order. In the portion of the order addressing the new trial motion, the superior court
acknowledged that it was required to independently assess the weight of the evidence
and the credibility of the witnesses without deference to the jury's view of these matters.
But the court's analysis of the new trial motion nevertheless repeatedly referred to an
abstract "fact-finder" and what that fact-finder could "reasonably infer" from the
evidence. The court gave contradictory statements of its own view of what the evidence
was, and at one point even noted in a footnote that, if this had been a bench trial, the
31 Id.
32 See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State , 188 P.3d 700,
702 (Alaska App. 2008).
33 Hunter v. Philip Morris USA Inc., 364 P.3d 439, 447 (Alaska 2015).
34 Id. ; see also United States v. Rothrock, 806 F.2d 318, 321 (1st Cir. 1986) (affirming
both the trial court's denial of a motion for judgement of acquittal and the trial court's
granting of a new trial to avoid injustice because "[a] district court has greater power to order
a new trial than to overturn a jury's verdict through a judgment of acquittal").
- 25 - 2691
----------------------- Page 26-----------------------
court "might well have not found that the state had proven its case beyond a reasonable
doubt." The court did not explain what it meant by that footnote, and, at sentencing, the
court was adamant that it "want[ed] to make it clear that [its] personal opinion has never
been expressed and will not be."
Phornsavanh argues that the superior court failed to apply the correct legal
standard when it assessed his motion for a new trial based on the weight of the evidence.
We agree. When a trial court rules on a motion for a new trial based on the weight of the
evidence, the trial court must take a "'personal view of the evidence'" and "'exercise its
discretion and independently weigh the evidence,'" without reference to what
35
"reasonable jurors" could find.
The trial court must then "use its discretion to
determine whether a verdict is against the weight of the evidence - not merely whether
the trial court disagrees with the verdict - and whether a new trial is necessary 'in the
36
interest of justice,' that is, 'to prevent injustice.'"
"It is indisputable that a primary goal, perhaps the paramount goal, of the
37
criminaljusticesystemis toprotect theinnocentaccused against erroneous conviction."
Thus, "[i]f the complete record, testimonial and physical, leaves a strong doubt as to the
defendant's guilt, even though not so strong a doubt as to require a judgment of acquittal,
35 Hunter, 364 P.3d at 452-53 (quoting Kava v. American Honda Motor Corp , 48 P.3d
1170, 1177 (Alaska 2002)).
36 Id. at 448 (quoting Kava, 48 P.3d at 1176-77 and Alaska R. Civ. P. 59(a)).
37
Shaw v. State, Dep't of Admin, 861 P.2d 566, 570 (Alaska 1993); see also Yates v.
Aiken , 484 U.S. 211, 214 (1988) ("[I]t is far worse to convict an innocent man than to let a
guilty man go free." (quoting In re Winship , 397 U.S. 358, 372 (1970))); 1 Lafave, et al.,
Criminal Procedure § 1.5(e), at 243-57 (4th ed. 2020); cf. United States v. Polin, 824 F.Supp.
542, 551 (E.D. Pa. 1993) (concluding that new trial is warranted if there is a "real concern"
that the defendant is innocent), aff'd, 22 F.3d 304 (3d Cir. 1994).
- 26 - 2691
----------------------- Page 27-----------------------
the district judge may be obliged to grant a new trial." 38 Likewise, a trial court should
grant a motion for a new trial in "exceptional circumstances" such as when there is "a
39
real concern that an innocent person may have been convicted."
Granting a motion for
40
a new trial results only in a new trial; jeopardy does not attach.
Because it is the trial court that has viewed the evidence and heard the
witnesses, it is the trial court that is in the best position to determine if the interests of
justice require a new trial.41
An appellate court will reverse a trial court's ruling on a
42
motion for a new trial only if it finds that the trial court abused its discretion. In the
context of a trial court's denial of a motion for a new trial based on the weight of the
evidence, an appellate court will find an abuse of discretion only if the evidence
supporting the verdict is "so slight and unconvincing as to make the verdict plainly
43
unreasonable and unjust."
In a recent civil case, Hunter v. Philip Morris USA, Inc., the Alaska
Supreme Court noted that this Court has erroneously referred to the "so slight and
38 United States v. Morales, 910 F.2d 467, 468 (7th Cir. 1990), amending 902 F.2d 604
(7th Cir. 1990)).
39 United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir. 1992) ("There must be a real
concern that an innocent person may have been convicted. It is only when it appears that an
injustice has been done that there is a need for a new trial 'in the interest of justice.'").
40 Tibbs v. Florida, 457 U.S. 31, 45 (1982).
41 Hunter, 364 P.3d at 447-48; see also United States v. Morales, 902 F.2d 604, 605
("Because the trial judge is in a better position than we to evaluate such a motion - he heard
the witnesses and lawyers and watched the jurors as they listened to the evidence - the
standard of appellate review is, as the cases cited indicate, a highly deferential one."),
amended, 910 F.2d 467 (7th Cir. 1990).
42 Hunter, 364 P.3d at 448.
43 Id. at 449 (quoting Ahlstrom v. Cummings , 388 P.2d 261, 262 (Alaska 1964)).
- 27 - 2691
----------------------- Page 28-----------------------
unconvincing" appellate standard as though it applied to trial courts deciding a motion
for a new trial in the first instance. 44
We accept the supreme court's correction to our
jurisprudence, and we hereby disavow our cases that have erroneously confused the two
45
standards.
In Hunter, the supreme court held that the appropriate standard for a trial
court to use in a civil case when determining whether the verdict is against the weight
of the evidence is the standard articulated in Kava v. American Honda Motor
Corporation:
[A] trial court may set aside a verdict and order a new trial in
the interest of justice if the verdict is against the weight of the
evidence. In deciding a motion for a new trial on this basis,
the court must use its discretion and independently weigh the
evidence. A court may set aside a verdict as being against the
weight of the evidence even when there is substantial
evidence to support it.[46]
The supreme court noted that additional guidance could be found in the language of the
rule, which authorizes a trial court to grant a new trial "if required in the interest of
47
justice." The court also directed trial courts to the most recent edition of Moore's
Federal Practice, which suggests that more complex cases deserve a more exacting
44 Id. at 448-49.
45 See, e.g., Taylor v. State, 262 P.3d 232, 234 (Alaska App. 2011); White v. State, 298
P.3d 884, 885-86 (Alaska App. 2013); Coleman v. State, 407 P.3d 502, 512 (Alaska App.
2017); Adams v. State , 440 P.3d 337, 341 (Alaska App. 2019). Contrast Howell v. State, 917
P.2d 1202, 1212 (Alaska App. 1996) (properly identifying the "so slight and unconvincing"
standard as an appellate standard).
46 Hunter, 364 P.3d at 447-48 (quoting Kava v. American Honda Motor Corp., 48 P.3d
1170, 1176 (Alaska 2002)).
47 Id. at 448 (quoting Alaska R. Civ. P. 59(a)).
- 28 - 2691
----------------------- Page 29-----------------------
scrutiny and again emphasizes that a trial court's discretion should be exercised "when
48
necessary to prevent injustice."
However, the supreme court otherwise declined to
"further refine" the Kava standard, concluding that any further attempts to refine the
49
standard "may run the significant risk of muddling more than they clarify."
On appeal, the State argues that the holding in Hunter does not apply to
Phornsavanh's case because Hunter was a civil case. But we perceive no reason why the
standard for granting a new trial should be higher in a criminal case than it is in a civil
case. The language of the civil and criminal rules are identical and they both derive from
the same common law tradition. Alaska Civil Rule 59(a) authorizes the granting of a
new trial "if required in the interest of justice." Alaska Criminal Rule 33(a) likewise
authorizes a new trial "if required in the interest of justice." Accordingly, in our view,
the criticisms of various new trial formulations discussed in Hunter are equally apt when
applied to criminal cases. We likewise conclude that Hunter 's emphasis on the trial
court's broad discretion and the need for the trial court to take a "personal view" of the
50
evidence provides useful guidance for trial courts in criminal cases.
The Hunter decision was issued four months after the superior court issued
its decision denying Phornsavanh's motion for a new trial. The superior court therefore
did not have the benefit of Hunter 's clarification of the trial court standard. Instead, the
court relied on our prior misleading caselaw, and thecourt deniedPhornsavanh's motion
for a new trial because it found that the evidence was not "so slight and unconvincing as
to make the verdict plainly unreasonable and unjust." But, as just explained, this is the
48 Id. (citing 12 James W.M. Moore, Moore's Federal Practice § 59.13[1], at 59-39 (3d
ed. 2020)).
49 Id.
50 Id. at 452 (quoting Kava, 48 P.3d at 1177).
- 29 - 2691
----------------------- Page 30-----------------------
standard for appellate courts when reviewing a trial court's denial of a motion for a new
trial. It is not the standard that should be used by the trial court in the first instance.
Because we cannot determinewhatthesuperior court would have ruled had
it understood the singular importance of its role in independently assessing the motion
for a new trial in the interest of justice, we conclude that a remand for reconsideration
of Phornsavanh's motion for a new trial under the correct legal standard is required.
Conclusion
This case is REMANDED to the superior court for reconsideration of the
motion for a new trial on the ground that the verdicts were against the weight of the
evidence. We retain jurisdiction. The superior court shall hold a hearing and transmit
its findings to this Court within 90 days of this decision. This deadline may be extended
by the superior court for good cause and notification to this Court.
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