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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


YURI BEREZYUK,
                                                      Court of Appeals No. A-12188
                             Appellant,               Trial Court No. 3PA-14-617 CR

                     v.
                                                                OPINION
STATE OF ALASKA,

                             Appellee.                 No. 2572 — October 20, 2017


              Appeal from the Superior Court, Third Judicial District, Palmer,
              Kari Kristiansen, Judge.

              Appearances: Glenda Kerry, Law Office of Glenda J. Kerry,
              Girdwood, for the Appellant. Terisia K. Chleborad, Assistant
              Attorney General, Office of Criminal Appeals, Anchorage, and
              Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, and Allard, Judge.

              Judge ALLARD.


              A jury found Yuri Berezyuk guilty of second-degree misconduct involving
a controlled substance (possession of heroin with the intent to distribute) and fourth-
degree misconduct involving a controlled substance (simple possession)1 after Wasilla


   1
       These guilty verdicts merged at sentencing, resulting in a single conviction for second­
                                                                                 (continued...)
police found Berezyuk slumped over the wheel of his brother’s car and in possession of
14 grams of heroin and other drug paraphernalia. At trial, the prosecutor sought to
introduce evidence of Berezyuk’s prior conviction for possession of heroin with intent
to distribute (which occurred ten years earlier) as evidence of Berezyuk’s intent to
distribute the heroin found in the current case. The superior court overruled the defense
attorney’s objection to this evidence, concluding that evidence of the prior conviction
was admissible under Bingaman v. State as evidence of a relevant “character trait” that
“tends to prove [Berezyuk’s] intent [to distribute heroin].”2
              On appeal, Berezyuk argues that the superior court applied the wrong
evidentiary standard and erroneously permitted the prosecutor to use the prior conviction
as character evidence at trial. We agree with Berezyuk that the superior court applied
the wrong evidentiary standard and that the court failed to conduct the proper analysis
under Alaska Evidence Rules 404(b)(1) and 403. We also conclude that the prosecutor’s
overt use of the prior distribution conviction as character evidence at trial unfairly
prejudiced Berezyuk and requires reversal of his conviction for possession of heroin with
the intent to distribute (but not his conviction for simple possession).
              Berezyuk also raises a second issue on appeal. In addition to the felony
drug convictions, Berezyuk was also convicted of various misdemeanors, including
giving false information to a peace officer based on his falsely identifying himself as his
brother Ivan when he was arrested. Berezyuk challenges this false information
conviction, arguing that he was prejudiced by the prosecutor’s introduction of evidence


   1
      (...continued)
degree misconduct involving a controlled substance.
   2
      See Bingaman v. State, 76 P.3d 398 (Alaska App. 2003) (addressing admissibility of
evidence of prior domestic violence acts offered as character evidence under Alaska
Evidence Rule 404(b)(4)).

                                           –2–                                       2572

relating to two post-arrest encounters with the police in which Berezyuk again falsely
claimed to be his brother. For the reasons explained here, we find no merit to this claim.


      Background facts and prior proceedings
             On December 15, 2013, Wasilla Police Department Officer Michael
Bonadurer responded to a call for a welfare check after a man was observed slumped
over the wheel of a car in Wasilla. When Officer Bonadurer ran the license plate on the
car, it came back as registered to Ivan Berezyuk.
             Officer Bonadurer approached the vehicle and noticed tin foil and a glass
tube in the driver’s hands. On the front passenger seat, there was an open sunglasses
case with a small baggie containing a brown, tar-like substance that turned out to be
heroin.
             Officer Bonadurer knocked on the car’s window to waken the driver, and
he directed the driver to open the door. Instead of opening the car door, the driver
“mess[ed]” with the drug paraphernalia on the passenger seat, and then drove away,
throwing the sunglasses case out of the window as he fled. A chase ensued and, within
a short time, the driver was apprehended.
             Initially, the driver identified himself as “Ivan Berezyuk,” and he was taken
to jail, booked, and released on bail as Ivan Berezyuk. However, fingerprint analysis and
a search of DMV records revealed that the driver was actually Ivan’s brother, Yuri
Berezyuk.
             After retracing the route the car had taken during the police chase, the
police found the sunglasses case. The case held 14 grams of heroin, valued at
approximately $7000. A search of the car also revealed a digital scale and Yuri
Berezyuk’s cell phone.



                                          –3–                                       2572

              The State indicted Berezyuk on one count of second-degree misconduct
involving a controlled substance (possessing heroin with intent to distribute)3 and one
count of fourth-degree misconduct involving a controlled substance (knowingly
possessing heroin).4 The State also charged Berezyuk with three misdemeanors: failure
to stop at the direction of a peace officer,5 providing false information concerning
identity,6 and violating conditions of release.7
              At the beginning of Berezyuk’s trial, the prosecutor sought to introduce
evidence of Berezyuk’s prior conviction for possession of heroin. The prior conviction
arose from an incident in 2004 in which Berezyuk and his brother Ivan were arrested for
stealing a camera from a kiosk in the Anchorage airport. When the police searched
Berezyuk after the arrest, they discovered two bricks of heroin in Berezyuk’s jacket,
along with lubricating gel and an unopened package of party balloons in Berezyuk’s bag.
The two bricks of heroin weighed almost 320 grams, and were valued at approximately
$250,000. Berezyuk admitted to the police that he was waiting for a phone call so that
he could deliver the heroin to a person in Wasilla. Berezyuk also told the police that, in
exchange for delivering the heroin, he was supposed to receive three to four grams for
his personal use. Based on this evidence, Berezyuk was convicted of second-degree



   3
       Former AS 11.71.020(a)(1) (2014).
   4
      Former AS 11.71.040(a)(3)(A)(ii) (2014). Berezyuk was also charged with a second
count of fourth-degree misconduct involving a controlled substance for possessing
methamphetamine, but this charge was dismissed prior to trial.
   5
       AS 28.35.182(b). Berezyuk does not challenge this conviction on appeal.
   6
       AS 11.56.800(a)(1)(B).
   7
       Former AS 11.56.757(b)(1) (2014). Berezyuk does not challenge this conviction on
appeal.

                                           –4–                                      2572

misconduct involving a controlled substance for possessing heroin with intent to
distribute.
              The prosecutor argued that this prior conviction should be admitted at trial
because it was relevant to prove Berezyuk’s intent to distribute the heroin found in the
current case. Berezyuk’s attorney objected and argued that the jury was likely to use the
prior conviction for an improper purpose. The superior court overruled the objection.
              However, in overruling the defense attorney’s objection, the superior court
did not directly address whether the evidence was being offered for a non-propensity
purpose; nor did the court analyze its admissibility under Evidence Rules 404(a),
404(b)(1), and 403. Instead, the court erroneously applied the test announced by this
Court in Bingaman v. State, which applies to evidence of prior domestic violence offered
as character evidence under Evidence Rule 404(b)(4).8 After engaging in this erroneous
analysis, the court then concluded that the prior conviction was admissible under
Bingaman because the circumstances of the prior conviction were “sufficiently similar”
to the current case and because Berezyuk’s prior conviction for distribution of heroin
was a relevant “character trait” that “tend[ed] to prove [Berezyuk’s] intent [to distribute
heroin]” in the current case.
              In line with this ruling, the prosecutor then used Berezyuk’s prior
conviction as character evidence at trial. For example, at the beginning of her closing
argument, the prosecutor emphasized that the prior conviction showed that Berezyuk was
an “established drug dealer”:
              You’ve got a guy convicted [in] a 2004 case ... for possessing
              with the intent to distribute a pretty significant amount of
              heroin by all standards. A quarter of a million dollars worth
              of heroin is a huge amount. This is an established drug


   8
       Bingaman v. State, 76 P.3d 398, 415-16 (Alaska App. 2003).

                                           –5–                                       2572

              dealer, not rinkydink possession and share some with your
              buddy and call that distribution. It’s a real, live distribution
              case. He’s got balloons, and personal lubricant, and masking
              agents in his bag at the airport, heroin conviction.
                     Fast forward to 2014. The police respond and find the
              same individual [in possession of heroin].

Later in her closing argument, the prosecutor reminded the jury that “[t]he airport case
was a huge amount of heroin.” She also reminded the jury that the officer who was
involved in Berezyuk’s prior case had testified that Berezyuk was distributing “$250,000
worth of heroin” and “you have that case as evidence of [Berezyuk’s] intent” to
distribute the heroin found in the current case.
              Lastly, at the very end of her closing argument, the prosecutor argued that
it was “laugh[able]” to think that a person convicted of distributing such a large amount
of heroin in the past was not also guilty of intending to distribute the heroin found in his
possession in this case:
              Say the story out loud. Say it out loud to each other. And if
              you can do it and exonerate Yuri Berezyuk without laughing,
              then maybe there’s a reasonable defense. But there is not a
              reasonable defense. It just — it doesn’t even pass the laugh
              test that somebody who had the intent to distribute that much
              drugs in 2004, when he’s contacted with this much drugs in
              2014, hides them, runs from the police, lies to the police, isn’t
              knee deep in it this time as well.
              Following deliberations, the jury found Berezyuk guilty of all charges. This
appeal followed.




                                           –6–                                        2572

        The superior court erred in admitting evidence of the prior conviction and
        allowing it to be used as propensity evidence at trial
               Alaska Evidence Rules 404(a) and 404(b)(1) codify the common-law
doctrine that prohibits the admission of evidence of a person’s other crimes, wrongs, or
acts “if the sole purpose for offering the evidence is to prove the character of a person
in order to show that the person acted in conformity therewith.” Under Evidence Rules
404(b)(1) and 403, such evidence is admissible only if it is relevant for some other,
non-character purpose, and if the trial judge is convinced that this non-character purpose
is not outweighed by the risk of unfair prejudice that the jury will use this evidence
improperly.9
               Here, the prosecutor claimed that Berezyuk’s prior conviction for
distribution of heroin was relevant for the purportedly non-propensity purpose of proving
Berezyuk’s “intent” to distribute heroin. But simply using one of the words listed in
Rule 404(b)(1) does not mean that the evidence is actually relevant for a non-propensity
purpose.10 The prosecutor’s explanation of her theory of admissibility made clear that
the prosecutor intended to use (and ultimately did use) Berezyuk’s prior conviction as
character or propensity evidence — i.e., to establish that Berezyuk was a proven drug
dealer who had been convicted of distributing large amounts of heroin in the past and
who could therefore be expected to have acted in conformity with that prior conduct in
the current case.



   9
       See Willock v. State, 400 P.3d 124, 127 (Alaska App. 2017) (explaining these
principles).
   10
       Cf. Willock, 400 P.3d at 127 (“[A] trial judge must not allow a prosecutor (or a
defense attorney, for that matter) to simply recite the various permitted purposes listed in
Rule 404(b)(1) and to make generalized assertions about how a person’s past acts show their
‘intent’, ‘plan’, ‘knowledge’, or ‘absence of mistake or accident.’”).

                                           –7–                                        2572

              The superior court’s ruling implicitly recognized the underlying propensity
nature of the prosecutor’s argument for admissibility of the prior conviction. The court
did not identify a non-propensity use of the evidence nor did it analyze the admissibility
of the prior conviction under Evidence Rules 404(b)(1) and 403. Instead, the court
agreed with the prosecutor that the prior conviction was a relevant “character trait” that
“tend[ed] to prove” Berezyuk’s “intent” to distribute heroin, and the court analyzed the
admissibility of this evidence under the Bingaman test — a test designed to assess the
admissibility of character evidence under Evidence Rule 404(b)(4).11
              This was error. Because Bingaman is a test for evaluating the admissibility
of evidence that is expressly being offered to establish a defendant’s character (under a
rule that creates an exception to the normal ban on character evidence), the Bingaman
test is an inappropriate legal framework with which to assess the admissibility of
evidence under Rule 404(b)(1) — a rule that expressly prohibits character evidence.
              We note that the misuse of Bingaman in this context is not unique to this
case. We have seen other cases where judges have inappropriately used the Bingaman
test to analyze the admissibility of evidence under Rule 404(b)(1).12 But those cases
typically involved situations where the non-propensity purpose of the evidence was
clear, and the judge’s announced reliance on Bingaman appeared to be an error of
nomenclature rather than substance.13



   11
        Bingaman, 76 P.3d at 415-16 (Alaska App. 2003).
   12
      See, e.g., Rollins v. State, 2015 WL 4874789, at *3 (Alaska App. Aug. 12, 2015)
(unpublished).
   13
       Id. (concluding that although the trial court mistakenly referred to the Bingaman test,
an examination of the trial court’s actual analysis of the proffered evidence indicated that the
court properly engaged in the correct analysis under Rule 404(b)(1) and Rule 403).

                                             –8–                                         2572

              Here, however, the superior court’s reliance on Bingaman was premised on
a fundamental misunderstanding of when evidence of a defendant’s character trait is
admissible. And the court’s error directly led to the prosecutor using the prior conviction
as propensity and character evidence at trial.
              On appeal, the State argues that there were, in fact, legitimate non-
propensity uses for Berezyuk’s prior conviction. The State points out specifically that
Berezyuk’s defense in this case was that the drugs belonged to his brother — and that
Berezyuk’s prior case also involved Berezyuk’s brother. While the State has identified
an arguable non-character ground of relevance, the record of Berezyuk’s trial clearly
reveals that the prosecutor’s primary use of this evidence was to urge the jurors to
improperly view the evidence as character evidence.
              For much the same reason, we conclude that the limiting instruction given
in this case was insufficient to cure the trial judge’s error. This instruction told the jury
that they could only use evidence of Berezyuk’s “other conduct” (i.e., his prior
conviction) to establish “motive, opportunity, intent, identity, preparation, plan,
knowledge, or absence of mistake or accident” — in other words, Evidence Rule
404(b)(1)’s list of potential permitted purposes. But the jury was unlikely to understand
the purpose of this instruction, or its importance in Berezyuk’s case. The prosecutor
overtly asked the jurors to use Berezyuk’s prior conviction as propensity evidence. And
the court’s limiting instruction was a generic list of technical legal terms, devoid of any
explanation as to how these concepts might relate to the facts of Berezyuk’s case.14




   14
      See Willock, 400 P.3d at 127 (noting the difference between the technical legal
meaning of the word “intent” as it pertains to Rule 404(b)(1) and the way it is used in
“everyday speech”).

                                            –9–                                        2572

              The State also argues that any error in introducing the prior conviction was
harmless because, according to the State, the evidence was overwhelming that Berezyuk
possessed the heroin with intent to distribute it.
              We agree with the State that the evidence of Berezyuk’s possession of the
heroin was overwhelming. Despite Berezyuk’s claim that he was unaware of the
contents of the sunglasses case, all of Berezyuk’s actions — his “messing” with the drug
paraphernalia on the passenger seat when the police officer woke him up, his ensuing
flight from the officer, his throwing the sunglasses case out of the car, and his false claim
that he was his brother Ivan — pointed to his awareness that the sunglasses case held
illegal drugs. We therefore agree with the State that the error was harmless with regard
to the charge of simple possession, and we uphold Berezyuk’s conviction for fourth-
degree misconduct involving a controlled substance.
              We come to a different conclusion, however, with regard to the charge of
possession with intent to distribute. Precisely because the evidence was so strong that
Berezyuk knowingly possessed the heroin, the prosecutor’s primary use of Berezyuk’s
prior conviction was to prove the additional allegation that Berezyuk intended to
distribute this heroin.
              Although there was evidence of Berezyuk’s intent to distribute apart from
his prior conviction — for example, the high monetary value of the heroin, and the fact
that there was a drug-weighing scale in the car — the prosecutor’s closing argument
relied heavily on the prior conviction as proof of Berezyuk’s intent to distribute the
heroin in this case. Given this, we conclude that the trial court’s error in admitting this
evidence likely had an appreciable effect on the jury’s verdict on the second-degree




                                           – 10 –                                      2572

controlled substance misconduct charge. We therefore conclude that we must reverse
that conviction.15


        Berezyuk’s argument regarding his false information conviction
              In a separate argument, Berezyuk challenges his conviction for giving false
information to the police (i.e., for falsely identifying himself as his brother Ivan).
Berezyuk argues that this conviction should be reversed because it was error for the trial
court to allow the prosecutor to introduce evidence of two other instances where
Berezyuk had encounters with the police and falsely identified himself as his brother.
              The first incident took place two days after Berezyuk was released on bail
in the present case: Berezyuk went to the impound lot where his brother’s car had been
towed, and he claimed that he was his brother in an attempt to get his brother’s car out
of the lot. The second incident occurred a few days later, when Berezyuk was stopped
for reckless driving, and he again claimed to be his brother.
              The trial judge prohibited the prosecutor from introducing the reason for
the traffic stop, but the court otherwise permitted the prosecutor to introduce this
evidence that Berezyuk had falsely identified himself as his brother Ivan.
              On appeal, Berezyuk argues that there was no legitimate non-propensity use
for this evidence. But even if we were to assume this is true, any error was clearly
harmless. The evidence was overwhelming that Berezyuk falsely identified himself to
the police, and Berezyuk’s attorney offered no real defense to this charge.




   15
        See Love v. State, 457 P.2d 622, 634 (Alaska 1969).

                                          – 11 –                                    2572

      Conclusion
             Berezyuk’s conviction for second-degree controlled substance misconduct
is REVERSED. His other convictions, including his conviction for fourth-degree
controlled substance misconduct, are AFFIRMED. This case is REMANDED to the
superior court for further proceedings consistent with this decision.




                                         – 12 –                               2572

