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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL D. LOGAN JR.,
Court of Appeals No. A-13610
Appellant, Trial Court No. 2KB-18-00407 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2781 - June 14, 2024
Appeal from the Superior Court, Second Judicial District,
Kotzebue, Paul A. Roetman, Judge.
Appearances: Michael Horowitz, Law Office of Michael
Horowitz, Kingsley, Michigan, under contract with the Public
Defender Agency, and Samantha Cherot, Public Defender,
Anchorage, for the Appellant. Diane L. Wendlandt, 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 Harbison,
Judges.
Judge HARBISON.
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Michael D. Logan Jr. was convicted, following a jury trial, of second-
1
degree sexual assault for digitally penetrating an incapacitated woman.
Logan now
appeals his conviction, raising two claims of error.
First, Logan argues that the superior court erred by denying his motion to
dismiss the indictment. He claims that reversal is required because the prosecutor
erroneously instructed the grand jury that, as a matter of Alaska law, a person who is
asleep is considered "incapacitated." Second, Logan argues that the superior court
erroneously prohibited himfromcalling the complaining witness during thedefensecase
in order to present evidence of her bias in favor of the State.
For the reasons explained in this opinion, we find no reversible error and
affirm Logan's conviction.
Factual and procedural background
One night in May 2018, Michael Logan, K.S., and their mutual friend
Shasta Nelson were at a small gathering where people were drinking alcohol, smoking
marijuana and tobacco, and using cocaine. Later on, Logan, K.S., and Nelson went
together to Nelson's house. At some point, Nelson left the house, and Logan and K.S.
each fell asleep, fully clothed, on Nelson's bed.
According to K.S., the next thing she remembered after "pass[ing] out" on
the bed was "[waking] up with Michael Logan's fingers in [her] vagina." K.S.
immediately pulled his hand out of her pants and told him to stop, which he did. She
then left the house and went to the hospital, where she reported the sexual assault.
1 Former AS 11.41.420(a)(3)(B) (2018). The jury also found Logan guilty of third-
degree sexual assault for the same conduct (under former AS 11.41.425(a)(1)(B) (2018)), and
the two counts merged.
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When the police arrived at Nelson's house, Logan was still in bed. Logan
agreed to speak to the officer, and he admitted to digitally penetrating K.S. while she was
sleeping. A DNA swab indicated the presence of K.S.'s DNA on both of Logan's hands,
and an expert in the field of DNA analysis testified that this was consistent with DNA
that came from vaginal or other biological fluids.
Logan was subsequently indicted for second- and third-degree sexual
assault for digitally penetrating and engaging in sexual contact with K.S. while knowing
she was incapacitated. 2
Beforetrial, Logan's attorney moved to dismiss theindictment, arguingthat
the prosecutor had improperly instructed the grand jury that, as a matter of law, a person
who is asleep is considered incapacitated for purposes of these two offenses. Logan's
attorney argued that the grand jury was required to make its own factual finding as to
whether K.S. was incapacitated, and that the prosecutor's instructions improperly
directed this finding.
The superior court agreed that it was error for the prosecutor to have
instructed the jury that a person who is asleep should be considered incapacitated as a
matter of law, but it found that the error had not prejudiced Logan's defense. The court
denied the motion, concluding that "[t]he error did not appreciably affect the grand jury's
deliberations because there was sufficient evidence presented to return a true bill." The
court explained that the evidence presented to the grand jury established that "when
Logan inserted his finger into K.S., he knew she was actually asleep and was not able to
express her unwillingness to act (i.e., incapacitated)."
2 Former AS 11.41.420(a)(3)(B) (2018) and former AS 11.41.425(a)(1)(B) (2018),
respectively.
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----------------------- Page 4-----------------------
The case proceeded to trial, and K.S. testified on the first day. During
cross-examination, Logan's attorney asked K.S. about her relationship with her then-
boyfriend at the time of her interaction with Logan. Through the cross-examination, the
attorney was able to establish that K.S.'s boyfriend was abusive, and the attorney later
argued that this cast doubt on K.S.'s version of events. After K.S.'s testimony, the State
called its remaining witnesses and then rested its case.
After the State rested, Logan's attorney initially told the superior court that
Logan would be testifying and that he was the final witness. However, the attorney
subsequently stated that he had a "last second headache" for the court and that he had
"just subpoenaed" K.S. and a police officer. The attorney stated that he wanted to recall
K.S. to question her about a pending felony charge against her because he had forgotten
to question her about the pending charge during his cross-examination. The superior
court ruled that the attorney had been given an opportunity to question K.S. during cross-
examination and that the attorney would not be permitted to call K.S. to testify. Logan's
attorney then called Logan as the only defense witness.
Logan testified that he believed that K.S. was awake when he digitally
penetrated her. In particular, he testified, "I was thinking she was still awake, and I
guess she wasn't awake, and she woke up and told me to stop." He stated that he then
stopped.
The jury ultimately found Logan guilty of both charges, and the superior
court merged the two counts into a single conviction for second-degree sexual assault.
This appeal followed.
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The superior court did not err in denying Logan's motion to dismiss the
indictment
Loganwas indicted for second- and third-degree sexual assaultfor digitally
penetrating and engaging in sexual contact with K.S. while knowing she was
incapacitated.3 During the grand jury proceedings, the prosecutor gave the grand jury
written instructions and provided an oral explanation of the instructions shortly before
calling K.S. as a witness. Logan contends that the prosecutor erroneously instructed the
grand jury that, as a matter of Alaska law, a person who is asleep is considered
"incapacitated."
The written instructions provided by the prosecutor included the definition
of "incapacitated" set out by AS 11.41.470(2): "A person is 'incapacitated' if the person
is temporarily incapable of appraising the nature of the person's own conduct or
physically unable to express unwillingness to act." The written instructions also
included a copy of the use note for AS 11.41.470(2), which stated in relevant part that
"King v. State . . . held that a victim, who had been sleeping at the time she was sexually
penetrated, was incapacitated."
The prosecutor also provided additional oral instructions, telling the grand
jury:
A person is incapacitated if the person is temporarily
incapable of appraising the nature of the person's own
conduct or physically unable to express unwillingness to act.
There's a court case called Ragsdale v. State, and that was
based on King v. State, that held that if a victim is sleeping at
the time that they're sexually penetrated, they're considered
incapacitated.
3 Former AS 11.41.420(a)(3)(B) (2018) and former AS 11.41.425(a)(1)(B) (2018),
respectively.
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----------------------- Page 6-----------------------
After the witnesses had testified, but prior to the grand jury's deliberations, the
prosecutor reminded the grand jury that Logan had admitted to digitally penetrating K.S.
while she was sleeping, and then told the grand jury that "the law says that incapacitated
means sleeping."
As we have explained, Logan's attorney filed a motion to dismiss the
indictment prior to his trial, contending that the prosecutor's i nstructions t o the grand
jury mistakenly equated sleeping with incapacitation. The superior court denied the
motion, finding that while the instruction was erroneous, the error was harmless.
On appeal, Logan contends that the superior court erred by denying his
motion. The State responds that the instruction was proper and, alternatively, that the
superior court correctly determined that any error was harmless under the circumstances
of this case.
There is support in our case law for the view that a sleeping person is
"incapacitated" for purposes of Alaska's sexual assault statutes. In King v. State, the
defendant was convicted of sexual assault of a person who was "incapacitated" as
defined by former AS 11.41.470(2).4
Under the former statute, the State was required
to prove both prongs of the "incapacitation" definition - i.e., that the victim was
(1) temporarily incapable of appraising the nature of their own conduct, and
5
(2) physically unable to express unwillingness to act.
King claimed that evidence
establishing that the complaining witness was sleeping when he initially penetrated her
6
was insufficient to support the jury's verdict.
4 King v. State, 978 P.2d 1278, 1279 (Alaska App. 1999).
5 Former AS 11.41.470(2) (Mar. 1997).
6 King, 978 P.2d at 1279.
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----------------------- Page 7-----------------------
This Court rejected King's claim, concluding that evidence that the victim
was asleep was sufficient to establish both that she was "incapable of understanding that
she was engaged in sexual penetration," and that she had been "physically unable to
7
express unwillingness to engage in sexual penetration." We accordingly affirmed
8
King's conviction. But in doing so, we cautioned that the question of whether a
sleeping person was incapacitated should be "answered by an examination of the
evidence," rather than by relying on "generalities about the characteristics or capabilities
of sleeping people."9
In July 1997, after the underlying incident in King had occurred, the
legislature amended AS 11.41.470(2).10
Under the amended statute (i.e., the version that
was in effect at the time of this case), the State must prove either that the victim was
temporarily incapable of appraising the nature of their own conduct or that the victim
11
was physically unable to express unwillingness to act.
Thus, evidence sufficient to
support only one of the two prongs of "incapacitation" may now satisfy the State's
burden of proving a victim was incapacitated. And, as we held in King, evidence that a
victim is sleeping is generally sufficient for a jury to reasonably conclude that a victim
12
is "temporarily incapable of appraising the nature of [their] own conduct."
But there is an important difference between (1) an appellate court's
holding that the evidence, when viewed in the light most favorable to upholding a jury's
7 Id. at 1280.
8 Id. at 1281.
9 Id. at 1280.
10 SLA 1997, ch. 63, § 7.
11 See AS 11.41.470(2).
12 King, 978 P.2d at 1280-81.
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----------------------- Page 8-----------------------
verdict, was legally sufficient, and (2) a prosecutor's use of a fact pattern from an
appellate case to instruct a fact finder that those facts establish an element of an offense,
or a legal term described in the definition of an offense, as a matter of law. Indeed, many
other jurisdictions have disapproved of instructions that define legal terms by providing
examples of fact patterns derived from appellate cases. 13
Such instructions may be misleading or confusing to those not trained in
the law. They also may suggest to fact finders that they need not carefully examine the
evidence to determine whether the State has met its burden of proof. We disapprove of
the prosecutor's remarks in this case, and we caution courts and practitioners to avoid
such instructions in future cases.
However, we conclude that the prosecutor's improper remarks do not
require dismissal of the indictment. Logan cites to Konrad v. State for the proposition
14
that a prosecutor's erroneous instruction to a grand jury invalidates the indictment. But
Logan's reliance on Konrad is misplaced. In that case, we did not conclude that all
instructional errors during a grand jury proceeding require dismissal of the indictment.
Instead, we considered whether the particular misinstruction would have caused the
grand jury to evaluate the evidence under an incorrect standard, and concluded that the
15
possibility of this was "sufficiently great" under the facts in Konrad's case. We do not
reach such a conclusion in the present case.
In thepresent case, theinstructions clearly conveyed tothegrandjurors that
they were required to determine whether K.S. was temporarily incapable of appraising
13 See, e.g., Kirsch v. State, 357 S.W.3d 645, 651 (Tex. Crim. App. 2012); Marks v.
State, 864 N.E.2d 408, 411-12 (Ind. App. 2007); State v. Dawley, 34 P.3d 394, 397-98 (Ariz.
App. 2001); Commonwealth v. Plowman, 548 N.E.2d 1278, 1280-81 (Mass. App. 1990).
14 Konrad v. State, 763 P.2d 1369, 1374-75 (Alaska App. 1988).
15 Id.
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----------------------- Page 9-----------------------
the nature of her conduct or physically unable to express a willingness to act. And as the
superior court found, the evidence was sufficient to establish that K.S. was incapacitated
and that Logan knew that she was incapacitated. 16
K.S. testified before the grand jury
that when she fell asleep, she was alone on the bed. She later woke up to Logan's hand
inside her vagina. She told the grand jury that when she awoke, she grabbed Logan's
hand out of her vagina and started "freaking out." The grand jury also heard the
testimony of a police officer who described Logan's interview with the police. The
officer testified that Logan admitted that, while K.S. was asleep, he had tried to arouse
her by digitally penetrating her vagina. Logan stated that K.S. then woke up, asked him
what he was doing, and "told him no."
Under these circumstances, we conclude that the superior court did not err
by denying the motion to dismiss the indictment.
The superior court's error in prohibiting Logan's attorney fromcalling the
complaining witness during his defense case was harmless beyond a
reasonable doubt
Logan's second argument is that the superior court erred when it did not
allow himto call K.S. during his defense case so that he could impeach her with evidence
of her pending felony case.
As we have explained, K.S. testified as a witness during the State's case,
andLogan'sattorneyconductedarobustcross-examinationofher, including questioning
her about an ongoing abusive relationship she had with another man and suggesting that
K.S. was afraid of this other man in order to cast doubt on the accuracy of K.S.'s
16 See Hurd v. State, 22 P.3d 12, 20 (Alaska App. 2001) (holding that dismissal of
the indictment was not required because, if the grand jurors had received the correct
instructions, they undoubtedly would have found sufficient grounds to indict).
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----------------------- Page 10-----------------------
statements about the incident with Logan. The court did not limit the attorney's
impeachment of K.S. in any way, and the attorney ultimately questioned K.S. a total of
three times - after direct examination, after re-direct examination, and after questions
from the jury.
The State also called a sexual assault nurse examiner and a police officer
who were part of the sexual assault response teamthat initially investigated K.S.'s report.
The nurse testified that K.S. had reported that she was digitally penetrated, and that the
examination the nurse conducted was consistent with K.S.'s report. The police officer
testified that K.S. reported to him that she woke up to Logan "with his hands down her
pants" and his fingers in her vagina.
The State then rested its case, and Logan's attorney informed the court that
Logan decided to testify. The attorney informed the court that Logan would be the only
defense witness. The court recessed for a short break.
After the break, Logan's attorney announced that he had "just subpoenaed"
K.S. and a Kotzebue police officer to testify "about the fact that [K.S.] is currently facing
her own felony charge." The attorney explained that he had intended to ask K.S. about
this pending case during her earlier testimony, but he mistakenly failed to do so. He also
acknowledged that this was a "last second headache" for the court. The attorney stated,
however, that he wanted to establish that K.S. was facing her own unspecified felony
charge, which he argued was evidence of K.S.'s interest or bias in favor of the State.
The prosecutor confirmed K.S. had been charged with a felony in an
unrelated case and that the State had extended an offer to her to resolve it. The
prosecutor emphasized that the State was not requiring K.S. to testify against Logan as
part of any plea agreement and that the charge against K.S. had been filed in April 2019
- about a year after the underlying incident that formed the basis for the charges in this
case. Logan's attorney admitted that he was aware of K.S.'s pending charge prior to trial
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but stated that he realized that morning, when he was practicing his closing statement,
that he had not questioned K.S. about it during her earlier testimony.
The superior court denied the request, finding that the defense had waived
the right to call K.S. by failing to "file any pretrial motion about it" and by failing to ask
her about her pending felony charge during her previous testimony.
The State concedes that the superior court should not have relied on the
failure to file a pretrial motion as a basis for denying the defense request to call K.S.
This concession is well-taken.17
Logan's attorney was not required to file a pretrial
motion in order to question K.S. regarding her pending felony charge.
Furthermore, although Logan's attorney was given ample opportunity to
question K.S. on the first day of trial, the attorney was entitled to call witnesses as part
18
He was also entitled to "broad latitude" in questioning a witness
of his defense case.
19
about potential bias. Notably, Logan's attorney was not proposing to call K.S. merely
to impeach her on matters to which she had previously testified. Rather, Logan's
attorney was proposing to introduce new and different evidence of K.S.'s potential bias.
Logan's attorney provided an offer of proof indicating the content of K.S.'s proposed
testimony, and although he suggested that his request would be a "headache," no
evidence in the record established that allowing Logan's attorney to call K.S. would
17 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court
to independently assess the State's concession of error in a criminal case).
18 See Brandon v. Dep't of Corr., 865 P.2d 87, 90 (Alaska 1993) ("The right to call
witnesses and present evidence is fundamental to a fair hearing and due process.").
19 Williams v. State, 480 P.3d 95, 102 (Alaska App. 2021) (quoting Stumpf v. State,
749 P.2d 880, 901 (Alaska App. 1988)).
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----------------------- Page 12-----------------------
20
cause confusion or unreasonable delay. We therefore conclude that the superior court
abused its discretion when it denied the attorney's request to call K.S. as part of the
defense case. 21
Given the nature of the rights at issue, the State must establish that the error
22
Although a restriction on this type of
is harmless beyond a reasonable doubt.
23
questioning is often reversible error, we conclude that, under the particular
circumstances of this case, the error was harmless beyond a reasonable doubt.
K.S. had already testified during the trial, and the attorney's impeachment
of her had not been limited in any way during her previous testimony. In fact, he had
20 See Alaska R. Evid. 403; Wilson v. State, 680 P.2d 1173, 1178 (Alaska App. 1984)
(affirming exclusion of defense witness testimony where there was no offer of proof
indicating the content of the proposed testimony or how it would show bias, and where the
testimony would cause confusion and delay).
21 See Evans v. State, 550 P.2d 830, 839-40 (Alaska 1976) (holding that the superior
court erred in restricting the defendant's ability to fully cross-examine the witness for bias
in favor of the State); Wood v. State, 837 P.2d 743, 747-49 (Alaska App. 1992) (holding that
the superior court erred in refusing to permit the defendant to cross-examine the complaining
witness to establish the witness's potential bias in favor of the State); Jackson v. State ,
695 P.2d 227, 232 (Alaska App. 1985) (holding that the defendant's inability to fully
cross-examine his co-defendant as to bias deprived the defendant of his right to
confrontation).
22 See Smithart v. State, 988 P.2d 583, 586-92 (Alaska 1999) (recognizing that "a
defendant's right to present a defense is a fundamental element of due process" and
concluding that the trial court's errors in excluding the defendant's evidence and argument
were not "harmless beyond a reasonable doubt"); see also Evans, 550 P.2d at 840
(recognizing that "when a criminal defendant is denied his constitutional right to confront
and cross-examine his principal accuser," reversal is required unless the error was harmless
beyond a reasonable doubt).
23 See, e.g., Evans, 550 P.2d at 839-41; Whitton v. State, 479 P.2d 302, 316-18
(Alaska 1970); Braund v. State, 12 P.3d 187, 191-92 (Alaska App. 2000); Wood, 837 P.2d
at 746-49.
- 12 - 2781
----------------------- Page 13-----------------------
been given three opportunities to ask her questions, and had elicited testimony about
K.S.'s boyfriend that he later used (albeit unsuccessfully) to argue a theory of bias to the
jury.
In contrast, the additional impeachment evidence Logan's attorney hoped
to introduce by calling K.S. and questioning her about her unrelated felony charge was
of marginal utility. As Logan's attorney acknowledged, K.S. was not charged with this
felony until a year after the alleged sexual assault - i.e., after the alleged sexual assault
occurred, after K.S.'s report to the hospital and the police, and after K.S. testified to the
grand jury. At trial, the jury heard K.S.'s testimony, which was consistent with her
earlier reports and her previous grand jury testimony. And, as the State points out, if
Logan's attorney had introduced evidence about K.S.'s recent felony charge, the State
would have been entitled to present additional evidence of K.S.'s prior consistent
24
statements to rebut the claim of recent fabrication.
The State also could have
introduced evidence that an offer to resolve the pending felony had already been
extended to K.S. There was therefore very little to support the claim that K.S.'s
testimony at trial was influenced by her desire to curry favor with the State with regard
to her own recent felony charge.
Lastly, we note that the purpose of establishing a witness's bias is to
undermine their credibility. Although Logan's defense attorney challenged the
credibility of some of K.S.'s testimony, he largely accepted that K.S. was incapacitated,
and primarily argued that Logan had not been aware that she was incapacitated. In
particular, Logan's attorney repeatedly told the jury during closing argument that the
central question in the case was: "Did Mr. Logan understand . . . as he laid there in bed
24 See Alaska R. Evid. 801(d)(1)(B) (allowing evidence of prior consistent statements
to rebut a claim of "recent fabrication or improper influence or motive").
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----------------------- Page 14-----------------------
with [K.S.], as he put . . . his left hand inside [K.S.], that at that moment, she had no idea
what was going on?"
Logan testified consistently with this defense - accepting that K.S. was
asleep, but contending that he thought she was awake. Logan testified that he thought
K.S. was awake, but then said, "I guess she wasn't awake." He stated, "I thought she
was awake, but then she woke up again." And, finally, he testified, "I thought she was
awake and then [I] . . . put my hand inside her vagina, and she woke up."
And ultimately, Logan's testimony was impeached by his own inculpatory
statement to the police that he told K.S. he was trying to wake her up when he penetrated
her.
Given this record and the strength of the State's case, we are persuaded that
the court's error in precluding evidence of K.S.'s recent felony charge was harmless
beyond a reasonable doubt. We therefore affirm Logan's conviction.
Conclusion
The judgment of the superior court is AFFIRMED.
- 14 - 2781
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