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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ZACHARIAH M. PAUKAN,
Court of Appeals No. A-13680
Appellant, Trial Court No. 4BE-18-00227 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2759 - September 22, 2023
App
eal from the Superior Court, Fourth Judicial District, Bethel,
William T. Montgomery, Judge.
Appearances: Jane B. Martinez, Law Office of Jane B.
Martinez, LLC, Anchorage, under contract with the Office of
Public Advocacy, for the Appellant. Michal Stryszak, Assistant
Attorney General, Office of Criminal Appeals, Anchorage, and
Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell,
Judges.
Judge WOLLENBERG.
Zachariah M. Paukan was arrested and charged in connection with an
incident involvinghis partner,BeautriceHeckman, and Heckman'sfriend,Eileen Tyson.
While in custody, Paukan placed a phone call to Heckman, during which he told her:
"I'm going to go to trial. Tell Eileen [Tyson] not to testify. And you won't either."
----------------------- Page 2-----------------------
Based on this conduct, Paukan was indicted on two counts of first-degree witness
tampering under AS11.56.540 -onecount under subsection (a)(1) and one count under
1
subsection (a)(2).
Neither count specified the identity of the witness with whomPaukan
allegedly tampered.
As trial began, it became clear that the parties had different understandings
of what crimes had been charged in the indictment. The prosecutor (who was not the
same prosecutor who conducted the grand jury proceedings) believed that Paukan had
been indicted for tampering with two distinct witnesses - Heckman and Tyson.
Paukan's attorney contended that Paukan had been charged with a single act of witness
tampering relating to his attempt to influence Heckman, and that the two separate counts
reflected two different legal theories of guilt. Paukan's attorney argued that allowing the
State to proceed on a count relating to Tyson would amount to a fatal variance from the
indictment. The superior court rejected this argument. Following a jury trial, Paukan
was convicted of both counts.
On appeal, Paukan renews his argument that allowing the State to proceed
on a witness tampering count related to Tyson amounted to a fatal variance. We have
reviewed the indictment and the grand jury proceedings, and for the reasons explained
in this decision, we agree with Paukan that there was a fatal variance. We therefore
reverse Paukan's conviction for witness tampering relating to Tyson.
1 AS 11.56.540(a)(1) (knowingly inducing or attempting to induce a witness to "testify
falsely, offer misleading testimony, or unlawfully withhold testimony in an official
proceeding"); AS 11.56.540(a)(2) (knowingly inducing or attempting to induce a witness to
"be absent from a judicial proceeding to which the witness has been summoned"). Paukan
was also charged with and convicted of one count of first-degree unlawful contact. See
AS 11.56.750(a)(1)(A). That conviction is not at issue on appeal.
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Facts and proceedings
In 2018, Zachariah Paukan and Beautrice Heckman were living together
with their two children. On the morning of March 1, Paukan and Heckman began
arguing. They had been up late at night drinking wine with their friend, Eileen Tyson.
At some point, during the argument, Paukan allegedly hit Heckman, threatened to burn
the house down, and started pouring gasoline around the house. In response, Tyson took
the two children to another home. Paukan was arrested shortly thereafter and prosecuted
in a separate case for third-degree assault.
Later that same day, two troopers interviewed Tyson. Tyson told the
troopers that Paukan had hit Heckman and threatened to burn down the house. Another
trooper, Alaska State Trooper Robert Casey, subsequently issued subpoenas to both
Heckman and Tyson for them to testify at the upcoming grand jury proceeding in the
assault case.
While in custody, Paukan called Heckman from the jail several times,
despite being ordered by the court not to do so. During one of those calls, made on
March 2 - the day after the incident - Paukan told Heckman, "I'm going to go to trial.
Tell Eileen [Tyson] not to testify. And you won't either." Trooper Casey obtained and
listened to Paukan's jail phone calls a few days later.
On March 7, Trooper Casey filed a complaint alleging that Paukan had
committed three additional crimes: unlawful contact (for contacting Heckman); violating
conditions of release (again, for contacting Heckman); and first-degree witness
tampering. The complaint did not specify the subject of the witness tampering charge
- although the trial prosecutor later clarified that he understood this initial charge to
refer to Heckman.
Alaska's first-degree witness tampering statute, AS 11.56.540, sets out two
separate theories of guilt. Subsection (a)(1) makes it a crime to knowingly induce or
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----------------------- Page 4-----------------------
attempt to induce a witness to "testify falsely, offer misleading testimony, or unlawfully
withhold testimony in an official proceeding." Subsection (a)(2) makes it a crime to
knowingly induce or attempt to induce a witness to "be absent froma judicial proceeding
to which the witness has been summoned." The March 7th complaint alleged that
Paukan was guilty under subsection (a)(2).
The grand jury proceeding in the underlying case - i.e., the case in which
Paukan was charged with third-degree assault - took place on March 8. Heckman did
not appear in front of the grand jury. Tyson appeared telephonically and testified about
the events of March 1, but the testimony she provided was inconsistent with her original
statements to the troopers. She downplayed Paukan's behavior and stated that she did
not remember much of what happened.
A second grand jury proceeding was held on March 15 seeking to indict
2
Paukan for the additional charge of witness tampering.
As we noted above, the initial
complaint alleged a single count of witness tampering under subsection (a)(2) of
Alaska's first-degree witness tampering statute. But the indictment presented to the
March 15th grand jury alleged two counts of first-degree witness tampering - the first
under subsection (a)(1) (Count I) and the second under subsection (a)(2) (Count II). The
counts did not identify the witness (Heckman or Tyson) with whom Paukan allegedly
tampered.
Here are the counts, as they were read to the grand jury by the prosecutor:
Count I - that in the Fourth Judicial District, State of
Alaska, on or about March 2, 2018, at or near St. Mary's,
Zachariah Paukan knowingly induced or attempted to induce
a witness to testify falsely, offer misleading testimony, or
unlawfully withhold testimony in an official proceeding, all
2 The unlawful contact and violating conditions of release charges were misdemeanors
that did not require an indictment.
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----------------------- Page 5-----------------------
of which is a Class C felony offense, being contrary to and in
violation of 11.56.540(a)(1), and against the peace and
dignity of the State of Alaska.
Count II - that in the Fourth Judicial District, State of
Alaska, on or about March 2, 2018, at or near St. Mary's,
Zachariah Paukan knowingly induced or attempted to induce
a witness to be absent from a judicial proceeding to which the
witness had been summoned, all of which is a Class C felony
offense, being contrary to and in violation of11.56.540(a)(2),
and against the peace and dignity of the State of Alaska.
The grand jury proceeding was short (approximately twenty minutes), and
Trooper Casey was the only witness. Casey testified that on March 1, he investigated an
alleged assault involving Paukan, Heckman, and Tyson.
As the prosecutor questioned Casey about the March 1 incident, the only
witness to the alleged assault about whom the prosecutor inquired was Heckman (not
Tyson). The prosecutor confirmed with Casey that Heckman was "a witness and
possibly a victim" in the March 1st case. The prosecutor then asked Casey whether he
had issued a subpoena for Heckman to appear at the first grand jury; in response, Casey
testified that he had issued subpoenas to both Heckman and Tyson. The prosecutor also
asked Casey whether there was a jail phone call in which Paukan asked Heckman not to
testify; in response, Casey testified that there was a phone call in which Paukan told
Heckman not to testify and told Heckman to tell Tyson not to testify.
These two instances are the only times Tyson was referenced in connection
with the witness tampering charges, and both references were made by Casey without
prompting from the prosecutor. In fact, the prosecutor himself only mentioned Tyson
twice during the entire proceeding: first, at the beginning of the proceeding, when the
prosecutor told the grand jury that it might "hear from or about" Tyson, Heckman, and
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----------------------- Page 6-----------------------
Casey; and second, near the beginning of Casey's testimony, when the prosecutor asked
Casey if he had investigated a case involving Paukan, Heckman, and Tyson.
At the end of the proceeding, the prosecutor noted that it was possible that
some of the grand jurors had also been present at the March 8th grand jury proceeding
(i.e., the grand jury proceeding stemming from the underlying incident), and the
prosecutor instructed the grand jurors that they should not consider that proceeding
"other than for the purpose of determining whether Ms. Heckman was subpoenaed to
testify before the grand jury." Again, the prosecutor did not mention Tyson. We note
that because Tyson did testify at the March 8th grand jury proceeding, the prosecutor's
instruction necessarily implied that the March 15th grand jury was not supposed to
consider Tyson's March 8th grand jury testimony in its deliberations.
Given these facts, there was strong reason to believe that the indictment
reflected a single act of witness tampering with Heckman under two separate theories -
one theory under AS 11.56.540(a)(1) and the other under AS 11.56.540(a)(2). Indeed,
Paukan's conduct with respect to Heckman could have arguably fallen under either
theory - i.e., that he induced or attempted to induce Heckman to either unlawfully
withhold testimony or be absent from the March 8th grand jury proceeding.
By the time this case came to trial, however, a new prosecutor had been
assigned to the case, and he sought to present proof that Paukan had committed two
separate acts of witness tampering: one for tampering with Heckman and one for
tampering with Tyson. The prosecutor's theory with respect to Count II (charging a
violation of AS 11.56.540(a)(2)) was generally consistent with the indictment: that
Paukan had induced Heckman to be absent from the March 8th grand jury proceeding.
But the trial prosecutor's theory of guilt with respect to Count I (charging
a violation of AS 11.56.540(a)(1)) bore little resemblance to what was presented to the
grand jury. The prosecutor explained that the State's theory of guilt as to Count I was
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----------------------- Page 7-----------------------
that Paukan had induced Tyson to testify falsely or offer misleading testimony at the
March 8th grand jury. To prove this allegation, the prosecutor sought to introduce
evidence of Tyson's original statements to the troopers and her testimony at the
March 8th grand jury, in order to show that Paukan had actually caused her to change her
version of events. The prosecutor described this evidence as "an essential element of the
State's proof."
Paukan's attorney objected, arguing that the State's attempt to convict
Paukan of witness tampering relating to Tyson constituted a fatal variance from the
indictment. Defense counsel noted that the grand jury proceeding focused on Heckman,
not Tyson. Defense counsel pointed to the fact that the prosecutor implicitly instructed
the March 15th grand jury that it could not consider Tyson's testimony at the March 8th
grand jury proceeding in its deliberations - i.e., that it could not consider the very
evidence the trial prosecutor now claimed was an "essential element" of the State's case.
The superior court rejected defense counsel's argument and held that there
was no fatal variance. The court framed the question as whether the evidence presented
to the grand jury was sufficient to find probable cause to indict Paukan for witness
tampering relating to Tyson, and whether Paukan received adequate notice of the
charges. The court concluded that there was both sufficient evidence and adequate
notice of a crime involving Tyson because Trooper Casey testified at the grand jury that
Paukan had told Heckman to tell Tyson not to testify.
After the close of evidence, the court instructed the jury that Paukan had
been charged with two counts of first-degree witness tampering - under
subsection (a)(1), for tampering with Tyson, and under subsection (a)(2), for tampering
with Heckman. In closing argument, the prosecutor argued that Paukan tampered with
Tyson (Count I) by inducing or attempting to induce Tyson to withhold testimony or to
testify falsely in an official proceeding. The prosecutor argued that Paukan tampered
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----------------------- Page 8-----------------------
with Heckman (Count II) by inducing or attempting to induce Heckman to be absent
from a judicial proceeding.
3
The jury returned guilty verdicts on both counts.
Paukan now appeals.
Why we conclude that there was a fatal variance requiring reversal of the
conviction involving Tyson
On appeal, Paukan renews his argument that there was a fatal variance
between the charge presented to the grand jury on Count I and the charge presented at
trial involving Tyson. We agree, and we therefore reverse Paukan's conviction for
witness tampering relating to Tyson.
Under Alaska law, a defendant may not be convicted "based on evidence
4
that is materially different from the evidence that supported the grand jury indictment."
A fatal variance occurs where there is a "departure in the proof from the indictment
sufficiently great to be regarded as a constructive amendment" requiring automatic
5
reversal.
"The doctrine of fatal variance protects a defendant's right to a grand jury
6
and a fatal variance occurs if the
finding on every essential element of the offense,"
3 The jury also found Paukan guilty of unlawful contact. The superior court granted a
judgment of acquittal on the charge of violating conditions of release.
4 Taylor v. State, 400 P.3d 130, 135 (Alaska App. 2017) (citing Lindeman v. State , 244
P.3d 1151, 1159 (Alaska App. 2011)).
5 Michael v. State , 805 P.2d 371, 373 (Alaska 1991) (quoting 2 Wayne R. LaFave &
Jerold H. Israel, Criminal Procedure § 19.2(h), at 469-70 (1984)).
6 Riley v. State, 515 P.3d 1259, 1264 (Alaska App. 2022) (citing Rogers v. State, 232
P.3d 1226, 1240 (Alaska App. 2010)).
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----------------------- Page 9-----------------------
defendant is convicted of a different crime from the crime charged by the grand jury in
the indictment. 7
But not every variation in proof between the grand jury and trial requires
reversal. Rather, "reasonable variations are permissible so long as the evidence is not
materially different and involves the same basic criminal act or transaction that was
8
considered by the grand jury in issuing the indictment."
The seminal case in Alaska on fatal variances is the Alaska Supreme
9
Court's decision in Michael v. State . Michael was indicted for first-degree assault for
10
having caused serious physical injury to his infant daughter. In a bench trial, the judge
found Michael not guilty of first-degree assault (because the judge was not persuaded
that Michael had personally caused his daughter's injuries or acted as an accomplice to
11
Nevertheless, the judge found Michael guilty
his wife, who had caused the injuries).
of the lesser offense of second-degree assault under the theory that Michael had a legal
12
The supreme court held
duty to protect his child from his wife and breached that duty.
that this verdict constituted a fatal variance from the indictment because the grand jury
7 See Michael, 805 P.2d at 373; Simpson v. State, 705 P.2d 1328, 1331 (Alaska App.
1985) ("The state cannot indict on one incident and convict on another."); see also Rogers,
232 P.3d at 1241 (noting, for clarification, that a grand jury's findings may include the
essential elements for which the defendant is convicted).
8 Riley, 515 P.3d at 1264; see also Rogers, 232 P.3d at 1239 (rejecting the notion that
"a trial jury has no authority to convict a defendant of a felony if the jury's verdict is
premised on a view of the evidence - more specifically, a view of the defendant's conduct
- that is different from the grand jury's").
9 Michael , 805 P.2d 371.
10 Id. at 372.
11 Id.
12 Id.
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----------------------- Page 10-----------------------
had never indicted Michael on the theory that he breached a duty of care toward his
child.13
The supreme court reached this conclusion despite acknowledging that
"[h]ad the grand jury chosen to do so, it certainly could have indicted [Michael] for
second degree assault, for failing to protect his child," and recognizing that the
prosecutor had told the grand jury that a person "in Michael's position could be guilty
14
of assault for failing to protect his child." In other words, it did not matter that the
evidence was sufficient for the jury to indict on a duty of care theory, nor did it matter
that the prosecutor had informed the grand jury that such a theory was legally viable.
15
Rather, what mattered was "that the grand jury made no such charge in the indictment."
Thus, the question we must ask in this case is whether the grand jury
indicted Paukan on a count of witness tampering relating to Tyson.
As the Alaska Supreme Court has explained, "An indictment's language,
read in conjunction with the grand jury record, determines the charge for which the
16
defendant is indicted."
Here, the language of the indictment is ambiguous: the
indictment fails to specify the witness or witnesses with whom Paukan allegedly
tampered. Instead, each count asserts only that Paukan had tampered with "a witness."
13 Id. at 374.
14 Id.
15 Id. ; see also id. at 373 (concluding that, under Alaska law, a fatal variance is not
limited to situations that "deprive[] the defendant of fair notice of the charges . . . or leave[]
the defendant open to the risk of double jeopardy").
16 Bowers v. State, 2 P.3d 1215, 1218 (Alaska 2000).
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----------------------- Page 11-----------------------
Moreover, it is a common practice in Alaska for prosecutors to charge multiple counts
related to a single criminal act, with each count articulating a different theory of guilt. 17
Becausetheindictment is ambiguous, weturn to thegrandjury proceedings
to see whether, given the manner in which the case was presented, the grand jury
understood that Count I of the indictment applied to Tyson. There is no basis in the
record to conclude it did. The prosecutor never instructed the grand jury that one count
applied to Heckman and one applied to Tyson, and the prosecutor only asked questions
relating to Heckman. The relevant testimony about Tyson was offered by Trooper
Casey, and only in response to questions about Heckman.
Furthermore,theprosecutorexpressly told thegrand jurors thatthey should
not consider the earlier, March 8th grand jury proceeding for any purpose other than
18
"determining whether Ms. Heckman was subpoenaed to testify before the grand jury."
This statement necessarily implied that the grand jurors should not consider Tyson's
presence or her testimony at the March 8th grand jury - testimony that was, according
19
to the trial prosecutor, now an "essential element" of the State's case.
17 See Garhart v. State, 147 P.3d 746, 752-53 (Alaska App. 2006) ("Even when the
counts of the defendant's indictment charge separate theories of the same crime . . . Alaska
law allows the government to seek a jury verdict on each count."); see also, e.g., Williams
v. State, 480 P.3d 95, 98, 100-01 (Alaska App. 2021) (defendant was indicted and found
guilty of two counts of second-degree murder that were premised on different theories
regarding the same victim; the counts were later merged); Voyles v. State, 2008 WL 4951416,
at *2, *14 (Alaska App. Nov. 19, 2008) (unpublished) (defendant was indicted and found
guilty of three counts of second-degree murder related to one victim but based on different
theories; the counts were later merged).
18 Emphasis added.
19 The State's theory that Paukan had actually induced Tyson to testify falsely at the
March 8th grand jury, contrary to her earlier statements to the troopers, also lacked any
(continued...)
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Taken as a whole, the indictment and the grand jury proceedings support
the conclusion that the grand jury indicted Paukan for a single act of witness tampering
relating to Heckman under two different theories. Paukan's conviction for a count of
witness tampering related to Tyson thus constituted a fatal variance from the indictment
- i.e., "a departure in the proof from the indictment sufficiently great to be regarded as
20
a constructive amendment."
To the extent there is any lingering ambiguity in the
indictment and grand jury proceedings when viewed together, that ambiguity must be
resolved against the State, as the State is responsible for crafting the language of the
21
indictment and presenting evidence to the grand jury.
19 (...continued)
support in the record of the March 15th grand jury proceeding. This is because, at that
proceeding, neither Tyson's testimony nor her prior inconsistent statements to the troopers
were introduced.
20 Michael , 805 P.2d at 373 (quoting 2 Wayne R. LaFave & Jerold H. Israel, Criminal
Procedure § 19.2(h), at 469-70 (1984)).
21 See United States v. Olmeda, 461 F.3d 271, 283 (2d Cir. 2006) ("[A]s between the
government and the defendant, the government, being the party that drafts indictments,
should bear any burden resulting from imprecise language[.]" (citing United States v. Inmon,
568 F.2d 326, 332 (3d Cir. 1977))); State v. Wright, 775 S.E.2d 567, 568 (Ga. App. 2015)
("An indictment is to be strictly construed against the state when a demurrer has been filed
against it." (internal quotations omitted)); Bruce v. State, 104 N.E.2d 129, 131 (Ind. 1952)
("Where an indictment or affidavit is uncertain or ambiguous, or where its language admits
of more than one construction, all reasonable doubts are to be resolved in favor of the
accused and it will be construed most strongly against the state."); cf. Anthony v. State, 329
P.3d 1027, 1032 (Alaska App. 2014) (stating that, in the context of an ambiguous plea
agreement between the State and a defendant, "the court is required to construe the ambiguity
against the State, because the State is the party with the greater bargaining power"); see
generally Michael, 805 P.2d at 374 n.13 (emphasizing "the continuing importance of careful
pleading under Alaska's criminal law").
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----------------------- Page 13-----------------------
We note that the variance in this case had significant implications for
Paukan: if the indictment charged two counts involving Heckman (as Paukan's attorney
believed and as thegrand jury proceeding reflected), thosecountswouldmerge if Paukan
22
were found guilty of both counts. But if the counts related to two different witnesses
(as the prosecutor was allowed to argue at trial), then those guilty verdicts would result
in the separate convictions at issue here.
For these reasons, we reverse Paukan's conviction for witness tampering
related to Tyson.
Conclusion
We REVERSE Paukan's conviction on Count I. In all other respects, we
AFFIRM the judgment of the superior court.
22 See Douglas v. State, 215 P.3d 357, 365 (Alaska App. 2009) ("Under Alaska law, the
State is allowed to pursue an indictment which separately charges different theories of the
same crime, or which charges separate crimes that clearly will be treated as the 'same crime'
for sentencing purposes under Whitton [v. State, 479 P.2d 302, 312-13 (Alaska 1970)] if the
defendant is convicted of each." (citing Garhart, 147 P.3d at 752-53)).
- 13 - 2759
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