      Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
      Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
      303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
      corrections@akcourts.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

CHRISTOPHER SEEGANA HESS,                       )   Supreme Court No. S-16466
                                                )
                      Appellant,                )   Court of Appeals No. A-11425
                                                )
      v.                                        )   Superior Court No. 3AN-11-10574CR
                                                )
STATE OF ALASKA,                                )   OPINION
                                                )
                      Appellee.                 )   No. 7323 – December 21, 2018



              Petition for Hearing from the Court of Appeals of the State of
              Alaska, on appeal from the Superior Court of the State of
              Alaska, Third Judicial District, Anchorage, Gregory Miller,
              Judge.

              Appearances: Brooke Berens, Assistant Public Advocate,
              Anchorage, and Richard Allen, Public Advocate, Anchorage,
              for Appellant. Terisia K. Chleborad, Assistant Attorney
              General, Anchorage, and Jahna Lindemuth, Attorney
              General, Juneau, for Appellee.

              Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
              and Carney, Justices.

              CARNEY, Justice.

I.    INTRODUCTION
              A jury convicted Christopher Hess of second and third degree assault. He
appealed, arguing that the superior court committed plain error by not addressing
improper statements in the prosecutor’s closing arguments. The court of appeals
affirmed Hess’s convictions and held that, although some of the prosecutor’s statements
were improper, they did not undermine the trial’s fundamental fairness. Hess petitioned
for hearing. We granted the petition and, finding plain error, reverse his convictions.
II.    FACTS AND PROCEEDINGS
       A.     Facts
              In September 2011 Anchorage police responded to a reported assault in
progress at Patricia Hess’s apartment. Officers found Patricia outside the apartment. She
was extremely upset and appeared to be intoxicated. There was bruising on the front of
her throat and the front of her pants was wet.
              Patricia told one of the officers that she and her son, Christopher Hess, had
argued and he had become angry. She said she struggled with him and he knocked her
to the ground and began strangling her. Patricia said she lost control of her bladder while
being strangled and almost blacked out, although she did not pass out.
              The officers and a police dog entered the apartment looking for Hess. He
was arrested after being found and bitten by the dog. Hess appeared intoxicated and
when questioned, he denied strangling his mother. Officers took Hess to a hospital
where he had surgery for the dog bite to his arm. The officers found Patricia’s dentures,
glasses, and a kitchen knife on the floor of the apartment.
       B.     Trial
              Hess was indicted for one count of second degree assault for strangling
Patricia1 and one count of third degree assault for recklessly placing her in fear of injury


       1
              See AS 11.41.210(a)(1) (a person who, with intent to cause physical injury
                                                                          (continued...)




                                            -2-                                       7323
with a dangerous instrument (his hands around her neck).2 The case went to trial on both
counts in August 2012.
                The State called three witnesses: Patricia and two of the responding
officers. Patricia testified that she did not remember much of what happened. She said
she remembered drinking with Hess, becoming very drunk, and then walking home from
the hospital.     Patricia testified that it was “kind of like blackout” and that she
remembered being in a patrol car, but could not remember meeting with police officers.
Patricia said that she did remember having a sore neck the next day. On cross-
examination Patricia testified that she had post-traumatic stress disorder (PTSD) after a
sexual assault four years earlier. She stated that she took medication for the PTSD, as
well as for depression, sleeplessness, pain, and high blood pressure. Patricia testified that
the medicine made her bruise easily. She also said that when she was “stressed [she had]
dissociation.”
                One of the police officers testified about his medical training — he testified
that he had worked as an EMT before joining the police department — and what he had
been taught were signs of possible strangulation. The signs included redness around the
throat and neck, petechiae (small red spots caused by broken blood vessels in the eyes,

       1
              (...continued)
to another, does so by means of a dangerous instrument, commits the crime of assault in
the second degree).
       2
              See AS 11.41.220(a)(1)(A) (a person who recklessly places another in fear
of imminent serious physical injury by means of a dangerous instrument commits the
crime of assault in the third degree); see also AS 11.81.900(15)(B) (defining “dangerous
instrument” to include “hands or other objects when used to impede normal breathing
or circulation of blood by applying pressure on the throat or neck or obstructing the nose
or mouth”).




                                              -3-                                       7323

hairline, or behind the ears), difficulty swallowing or breathing, and lost bladder and
bowel control. The officer testified that Patricia had difficulty swallowing and appeared
to have urinated on herself, but that he did not remember seeing petechiae or marks on
her face. He testified that he had seen strangulation cases in which there were no
petechiae. But he conceded on cross-examination that intoxication could cause people
to urinate on themselves.
              The other officer had interviewed Patricia and Hess at the scene. He
testified that Patricia was intoxicated, upset, coughing a lot, and had bruises on her neck.
He said that she seemed to be afraid of Hess and she said that he had strangled her after
an argument. The officer testified that marks on Patricia’s neck were consistent with
finger marks but that he did not see any impression of a hand or fingers. He also stated
that Hess was intoxicated, denied strangling his mother, and denied that his mother had
almost passed out.
              The defense presented four witnesses: Hess and three of Patricia’s other
family members. Each family member testified that Patricia had a reputation for
untruthfulness and dishonesty. They testified that Patricia was even less truthful when
drinking.
              Hess testified that he lived with Patricia when she needed help managing
her medical conditions, taking her medication, and taking care of household chores. He
said that he was with his mother on the night of the alleged assault, but that he only
remembered starting to drink in the afternoon and then waking up in the hospital after
being bitten by a dog. He testified that he did not remember strangling his mother or
putting his hands on her neck, and that he would never hurt his mother even if he was
drunk. Hess said that his mother sometimes forgot to take her medication, exaggerated




                                            -4-                                       7323

things, and was a danger to herself. The prosecutor impeached Hess’s testimony with
his convictions for crimes of dishonesty.
             The State’s closing argument focused on meeting the State’s burden of
proof and rebutting the defense’s theory. The prosecutor told the jury that the defense
wanted the jury to assume that Patricia was “crazy” and not to be trusted. After
discussing the elements of charges against Hess, the prosecutor argued that they were not
“going to be the biggest point. The biggest point is who do you believe?” He continued:
             I warned you during my opening that the defense was going
             to go out of their way to make it look like the victim was
             crazy, to vilify the victim. And we talked about this in voir
             dire. In domestic violence crimes that’s too often what
             happens. And if my demeanor was at any point in time less
             than professional, that’s my frustration because this case isn’t
             really about whether or not [Ms.] Hess is crazy. This case is
             about whether or not the defendant strangled his own mother,
             and that’s the evidence that came in.
After briefly arguing that the evidence had shown beyond a reasonable doubt that Hess
was guilty of the charged offenses, the prosecutor returned to whether Patricia was
“crazy”:
             Now, I understand Ms. Hess has been through a lot. You
             heard her testimony. And she is sympathetic, and I am [not]
             suggesting that you [should have] sympathy for her.[3]
             You’re supposed to make this decision absent pity and
             prejudice or passion. You’re supposed to be objective when
             you make this. And she paints a sympathetic figure, but think
             about the position she’s in when the state calls her to the
             stand. Her whole family clearly is against this prosecution.


      3
             The bracketed language was omitted from the trial transcripts, but the
alterations were agreed upon by the parties as present in the audio recording.




                                            -5-                                    7323
              They all came to the stand and called her a liar. Her own son
              got on the stand and had no problem saying she’s crazy. And
              that’s problematic, ladies and gentlemen, because you didn’t
              really see any evidence that she was crazy.
He concluded by arguing Patricia’s statements to the police were consistent with the
physical evidence and that Hess’s defense was not credible.
              After discussing the State’s burden of proof and the State’s reliance upon
Patricia’s version of events, the defense questioned Patricia’s credibility. Emphasizing
that the State’s case depended upon Patricia’s credibility, the defense attorney responded
to the prosecutor’s comments about the defense’s argument:
              [T]here was a characterization that we’re vilifying the victim.
              Now, to say that she has mental health issues, to say that she
              confuses reality from fantasy is not to vilify her. . . . We don’t
              know what she was perceiving. . . . [W]e know [] that she
              was not on her mental health medication and she was
              intoxicated.
The prosecutor returned to his vilification theme in rebuttal:
              [The defense attorney] says she is not vilifying the victim.
              She’s not vilifying the victim. Maybe that’s true and maybe
              that’s not. We talked about it in voir dire. If she’s not
              vilifying the victim, what she is suggesting is that someone
              who has had her teeth knocked out and been raped and is on
              medication can no longer ever be a victim. That’s what she’s
              suggesting to you, and that is what is offensive.
              It doesn’t make her a liar because she’s been victimized in
              the past.
He then argued that Hess had reasons to lie to the jury, and that he should not be believed
because he had “no qualms about making out his mother to be this crazy invalid, this
helpless creature.” The prosecutor argued that, on the other hand, Patricia had no motive
to lie even though she was reluctant to testify and “[c]learly she is involved in a family



                                             -6-                                     7323

that does not support her.” Hess did not object to any of these statements as improper
closing argument.
             The jury convicted Hess on both counts.
       C.    Appeal
             Hess argued for the first time in his brief to the court of appeals that the
prosecutor’s closing argument was improper. He acknowledged that he had not objected
to the argument at trial, but he argued that the prosecutor’s statements amounted to plain
error under Adams v. State.4
             The court of appeals concluded that although some of the prosecutor’s
arguments were improper, they did not rise to the level of plain error.5 Relying upon its
previous case of Rogers v. State,6 the court made its determination “in the context of the
record as a whole” and concluded that the improper remarks did not “rob [the trial] of
its fundamental fairness.”7 The court did not address whether the improper remarks
amounted to a constitutional violation.8
             We granted Hess’s petition for hearing, and, applying the correct plain error
test and finding plain error, we reverse Hess’s conviction and remand for a new trial.
III.   STANDARD OF REVIEW
             Appellate courts are authorized to notice plain errors or defects, even when



       4
             261 P.3d 758 (Alaska 2011).

       5
             Hess v. State, 382 P.3d 1183, 1185-87 (Alaska App. 2016).

       6

             280 P.3d 582 (Alaska App. 2012).
       7
             Hess, 382 P.3d at 1186-87.
       8
             See id.


                                           -7-                                      7323

not brought to the court’s attention, when they affect substantial rights.9
IV.    DISCUSSION
       A.     Alaska’s Plain Error Test
              We articulated the four-part test for plain error review in Adams v. State.10
All four factors must be met to determine whether plain error occurred:
              (1) there must be error, and the error must not have been the
              result of an intelligent waiver or a tactical decision not to
              object; (2) the error must be obvious, meaning that it should
              have been apparent to any competent judge or lawyer; (3) the
              error must affect substantial rights, meaning that it must
              pertain to the fundamental fairness of the proceeding; and (4)
              the error must be prejudicial.[11]
              The Adams test differs from the federal test because it imposes an additional
step not required under federal law. “[F]ederal plain error review is governed by a three-
part test: (1) there must be error, and the right at issue must not have been intentionally
relinquished; (2) the error must be plain, meaning obvious; and (3) the error must affect
substantial rights, meaning it must have affected the outcome of the proceeding.”12
              Unlike the inquiry required by the three-pronged federal plain error test,
Alaska’s standard separates the third prong into two steps.13 While federal appellate
courts determine that an error affected substantial rights only when the error was


       9
              Adams, 261 P.3d at 764.

       10
              Id. at 773.

       11
              Id.

      12
              Id. at 772 n.72 (citing United States v. Olano, 507 U.S. 725, 732-35
(1993)).
       13
              Id.


                                           -8-                                       7323

prejudicial, we have interpreted the phrase “ ‘affect substantial rights’ not to mean that
the error was prejudicial, but instead to mean that the error pertains to an important right
that could affect the fundamental fairness of the proceeding.”14
              Having determined that an error pertains to the fundamental fairness of the
proceeding, the court must next determine whether the error was prejudicial.15 We
explained in Adams how courts are to make that determination:
              A constitutional violation will always affect substantial rights
              and will be prejudicial unless the State proves that it was
              harmless beyond a reasonable doubt. An error that is not
              constitutional in nature will be prejudicial if the defendant
              proves that there is a reasonable probability that it affected
              the outcome of the proceeding.[16]
Whether the error was of constitutional dimension thus establishes and assigns the
burden of proof that must be met before the reviewing court can determine whether the
error was prejudicial. Contrary to the court of appeals’ decision and its reliance upon
Rogers, prejudice does not depend upon whether the error was “sufficiently central to
the trial so as to rob it of its fundamental fairness.”17
       B.     The Plain Error Test Applied To Hess’s Case
              We now examine the prosecutor’s improper arguments under the Adams
test. No argument has been made that Hess either waived his objection to the improper



       14
              Id.
       15
              Id.
       16
              Id. at 773.
       17
              Hess v. State, 382 P.3d 1183, 1186-87 (Alaska App. 2016) (citing Rogers
v. State, 280 P.3d 582, 589 (Alaska App. 2012)).


                                             -9-                                      7323

statements or made a tactical decision not to object. The first prong of the plain error test
is satisfied.18
                  The second prong is satisfied when the alleged error is obvious.19 The court
of appeals found that the prosecutor’s statements “improperly denigrated the defense
lawyer’s trial strategy by asserting that defense attorneys in general commonly engage
in false ‘vilification’ of victims of domestic violence” and that “[t]he prosecutor was
implicitly asking the jurors to reject Hess’s defense, not because the defense lacked
evidentiary support, but instead because of . . . his unsupported accusation that defense
attorneys commonly resort to underhanded or misleading tactics.”20
                  We agree that these arguments were improper. Both this court and the court
of appeals have previously condemned similar arguments as prosecutorial misconduct
and emphasized that closing arguments must be restricted “to the evidence presented at
trial and the inferences that may fairly be drawn therefrom.”21 Alaska’s Rules of
Professional Conduct place upon all attorneys the ethical obligation not to “allude to any
matter that the lawyer does not reasonably believe is relevant or that will not be
supported by admissible evidence” and forbid a lawyer from asserting personal
knowledge or stating a personal opinion about the issues before the trier of fact.22 Rule



       18
                  See Adams, 261 P.3d at 773.
       19
                  Id. at 773.
       20
                  Hess, 382 P.3d at 1186.
       21
             Patterson v. State, 747 P.2d 535, 538 (Alaska App. 1987) (approvingly
discussing STANDARDS FOR CRIMINAL JUSTICE § 3-5.8 (A M . BAR A SS ’N 2d ed. 1982));
see Adams, 261 P.3d at 767-770, 774-75.
       22
                  Alaska R. Prof. Conduct 3.4(e) (excluding times when the lawyer is a


                                              -10-                                      7323

of Professional Conduct 3.8 establishes special responsibilities for prosecuting attorneys;
its accompanying commentary begins with the reminder that a prosecutor “has the
responsibility of a minister of justice and not simply that of an advocate.”23 The
American Bar Association’s Criminal Justice Standard 3-6.8(c) reiterates these
obligations, stating that “[a] prosecutor should not make arguments calculated to appeal
to improper prejudices of the trier of fact.”24 The comments in the closing arguments
here attacking the defense attorneys and accusing Hess’s counsel of vilifying the victim
clearly violate these standards and were obvious error.
              The third prong of the Adams test requires the reviewing court to determine
whether the error “affect[ed] substantial rights, meaning that it . . . pertain[ed] to the
fundamental fairness of the proceeding.”25 In Adams we concluded that the prosecutor’s
comments on the defendant’s pre-arrest silence pertained to a substantial right because
a defendant’s pre-arrest silence is minimally probative and highly prejudicial.26
              The prosecutor’s comments here likewise affected important rights that
could affect the fundamental fairness of the proceeding. The prosecutor suggested that
the jury should consider his personal opinion of defense attorneys and Hess’s defense




       22
              (...continued)
witness).
       23
              Alaska R. Prof. Conduct 3.8 cmt. 1.
       24
              ABA STANDARDS FOR CRIMINAL JUSTICE : PROSECUTION & D EFENSE
FUNCTION    § 3-6.8(c) (A M . BAR A SS ’N 4th ed. 2015).
       25
              See Adams v. State, 261 P.3d 758, 773 (Alaska 2011).
       26
              Id. at 774.


                                           -11-                                      7323

strategy.27 The prosecutor’s attack on the defense strategy and defense counsel was
inappropriate, the comments were of no probative value, and they created a high
potential for unfair prejudice.
              The fourth prong of the Adams test requires the reviewing court to
determine whether the error was prejudicial.28 If an error affected a non-constitutional
substantial right, the defendant must show “there is a reasonable probability that the error
affected the outcome of the case.”29 In Adams we considered the following factors to
determine whether the defendant had shown whether “there [was] a reasonable
probability that the error affected the outcome of the case”: the weight of the State’s
other evidence, whether the case “hinged primarily on [] conflicting testimony,” whether
the statements occurred during closing arguments, whether the comments were “express”
versus “brief and passing,” and whether the comments were “directly elicited by the
prosecutor’s questioning.”30 In Goldsbury v. State we recently restated that “prejudicial
comments made during closing arguments are more likely to be prejudicial and less




       27
             See Bruno v. Rushen, 721 F.2d 1193, 1195 (9th Cir. 1983) (discussing how
prosecutorial attacks on defense counsel affect due process rights).
       28
              Adams, 261 P.3d at 773.
       29
              Id. at 774.
       30
              Id. at 774-75 (quoting Van Hatten v. State, 666 P.2d 1047, 1056 (Alaska
App. 1983), abrogated by Adams, 261 P.3d at 773). We have noted that statements
during closing arguments are more likely to be prejudicial because of concerns about the
effectiveness of objections made during final arguments. Id. “The prejudicial comment
is before the jury before the objection can be made, and the curative effect of an
admonition of the court to disregard the comment is of debatable value.” Id. at 775
(quoting Dorman v. State, 622 P.2d 448, 458 (Alaska 1981)).


                                           -12-                                       7323

likely to be mitigated by curative instructions than are comments made during other parts
of a trial.”31
                 The same considerations that led us to conclude that the error in Adams was
prejudicial are present here.32 The prosecutor made several separate comments attacking
the defense. He made them both during his initial closing argument and again during
rebuttal. The trial court did not give a curative instruction. The improper statements
went directly to the defense’s theory of the case and aimed to discredit the defense
attorney as well as her argument. Finally, as in Adams, the State’s case depended largely
on conflicting witness testimony.33 As a result “there is a reasonable probability that the
error affected the outcome of the case.”34
V.     CONCLUSION
                 Because the prosecutor’s improper statements during closing arguments
were plain error, we REVERSE Hess’s convictions and REMAND for a new trial.




       31
                 Goldsbury v. State, 342 P.3d 834, 838 (Alaska 2015).
       32
                 Adams, 261 P.3d at 774-75.
       33
                 See id. at 774.
       34
               Id. Because the prosecutor’s statements accusing Hess’s defense attorney
of vilifying the victim meet our test for plain error we do not reach his argument that the
improper prosecutorial remarks affected his constitutional rights.


                                             -13-                                     7323

