Galaktionoff v. State, 2020 Alas. App. LEXIS 34 (AK Ct. App. 2020)
Court of Appeals of Alaska
May 27, 2020, Decided
Court of Appeals No. A-12998, No. 6871
2020 Alas. App. LEXIS 34
DAVID WAYNE GALAKTIONOFF, Appellant, v. STATE OF ALASKA, Appellee.
Counsel: Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Judges: Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
Opinion by: ALLARD
David Wayne Galaktionoff was arrested after he attacked a pedestrian who was walking in mid-town Anchorage. Galaktionoff approached the pedestrian from behind, wrapping his arms and legs around him and ultimately bringing him down to the ground. According to the testimony at trial, Galaktionoff’s arms were around the pedestrian’s neck, but the pedestrian (who was trained in self-defense) was able to lower his chin to avoid being strangled. Galaktionoff also hit the pedestrian several times in the head.
Galaktionoff was indicted on two counts of third-degree assault under two different theories. Count I charged Galaktionoff with third-degree assault under AS 11.41.220(a)(1)(A) (recklessly placing another person in fear of imminent serious physical injury by means of a dangerous instrument). Count II charged Galaktionoff with third-degree assault under AS 11.41.220(a)(5) (recklessly causing physical injury to another person, having been convicted within the preceding ten years on two or more separate occasions of crimes with elements similar to AS 11.41.230(a)(1) or (2)).
The jury found Galaktionoff guilty of both counts at trial. The superior court merged the two counts into a single conviction for third-degree assault  and sentenced Galaktionoff to 60 months with 6 months suspended (54 months to serve) and 5 years’ probation, with general and special conditions.
Galaktionoff now appeals his conviction, challenging the indictment and the sufficiency of the evidence presented at trial. Galaktionoff also appeals two probation conditions that were imposed over his objection.
For the reasons explained in this decision, we affirm Galaktionoff’s conviction for third-degree assault, but we vacate the two challenged probation conditions and remand this case to the superior court for reconsideration of those two conditions.
Galaktionoff’s challenge to the grand jury indictment
After the grand jury indicted him on both counts of third-degree assault, Galaktionoff moved to dismiss the indictment on Count II (the recidivist count), arguing that the prosecutor relied on inadmissible hearsay to establish Galaktionoff’s prior convictions for the recidivist offense.
At the grand jury proceeding, the prosecutor relied on records from the Alaska Public Safety Information Network (APSIN) to establish Galaktionoff’s prior convictions for the recidivist count. Galaktionoff argued that use of these records was improper and that the prosecutor was required to introduce certified judgments of the prior convictions.
The grand jury proceeding in Galaktionoff’s case was held in August 2016. At the time, Alaska law allowed prosecutors in grand jury proceedings to rely on APSIN records to establish prior convictions in felony driving while under the influence cases and felony refusal cases. 
In 2019, the Alaska legislature extended this rule to all recidivist offenses. Alaska Criminal Rule 6(r)(6) now provides:
When a prior conviction is an element of an offense, hearsay evidence received through the Alaska Public Safety Information Network or from other government agencies of prior convictions may be presented to the grand jury.
However, this rule was not in effect at the time of Galaktionoff’s grand jury hearing.
The superior court denied Galaktionoff’s motion to dismiss, noting that he was not challenging the accuracy of the APSIN records.
Galaktionoff challenges this ruling on appeal. The State defends the superior court’s ruling on various grounds. We need not reach this issue because we conclude that the court’s ruling is moot. As already mentioned, the jury’s guilty verdicts on the two counts merged after trial, and Galaktionoff was convicted of only a single merged third-degree assault count. Thus, even if we were to conclude that the judge erred in denying the motion to dismiss Count II, Galaktionoff’s conviction under Count I would still remain. 
Galaktionoff’s insufficiency challenge to Count I
Galaktionoff argues that there was legally insufficient evidence presented at trial to support his conviction under the alternate theory that he recklessly placed the victim in fear of imminent serious physical injury by means of a dangerous instrument. We reject this claim.
To prove Galaktionoff guilty of third-degree assault under AS 11.41.220(a)(1)(A), the State was required to prove, beyond a reasonable doubt, that Galaktionoff recklessly placed the victim “in fear of imminent serious physical injury by means of a dangerous instrument.” The prosecution’s theory at trial was that Galaktionoff was using his hands as a “dangerous instrument.” According to the prosecutor, the evidence showed that Galaktionoff was using his hands to try to strangle the victim and it was only the victim’s training and fast response in lowering his chin that prevented the strangulation from occurring. The prosecutor also emphasized the victim’s testimony that he was afraid of being strangled to death.
Under AS 11.81.900(b)(15), “dangerous instrument” means
(A) any deadly weapon or anything that, under the circumstances in which it is used, attempted to be used, or threatened to be used, is capable of causing death or serious physical injury; or
(B) hands, other body parts, 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.
The jury was instructed on both statutory definitions of “dangerous instrument.” The jury convicted Galaktionoff without specifying which definition it was using.
On appeal, Galaktionoff concedes that there was sufficient evidence presented at trial to convict him under AS 11.81.900(b)(15)(A). That is, Galaktionoff concedes that there was sufficient evidence, viewed in the light most favorable to upholding the verdict, from which a jury could reasonably find proof beyond a reasonable doubt that Galaktionoff attempted to use his hands in a manner that was capable of causing death or serious physical injury.
Galaktionoff argues, however, that there was insufficient evidence to convict him under AS 11.81.900(b)(15)(B) because there was no evidence that Galaktionoff actually succeeded in using his hands to impede the victim’s normal breathing. In other words, Galaktionoff concedes that there was sufficient evidence that he tried to strangle the victim with his hands, but he argues that there was insufficient evidence that he was actually successful in doing so because of the victim’s evasive maneuvers.
Galaktionoff further argues that reversal of his conviction is required, notwithstanding the sufficiency of the evidence under AS 11.81.900(b)(15)(A), because the jury did not specify that it convicted him under (b)(15)(A). In support of this argument, Galaktionoff cites Foret v. State, a case in which we reversed the defendant’s conviction because there was insufficient evidence that Foret’s foot qualified as a “dangerous instrument” under AS 11.81.900(b)(15)(A) even though there was sufficient evidence that his hands qualified as a “dangerous instrument” under AS 11.81.900(b)(15)(B). 
But Foret presents a factual unanimity problem that does not exist in Galaktionoff’s case. In Foret, the prosecutor argued two different dangerous instruments arising from two distinct acts — that is, the prosecutor argued that Foret used his hands as a dangerous instrument to choke the victim and that Foret used his foot as a dangerous instrument to kick the victim. On appeal, we held that there was insufficient evidence to support the prosecutor’s theory that Foret used his foot as a dangerous instrument. And because the jury was not required to specify which dangerous instrument it found, we were required to reverse Foret’s conviction.
Here, in contrast, the prosecutor only argued one act — that is, the prosecutor argued that Galaktionoff tried to strangle the victim with his hands and that this act constituted using his hands as a “dangerous instrument.” It is true that the prosecutor mistakenly argued during closing arguments that Galaktionoff’s hands qualified as a dangerous instrument under AS 11.81.900(b)(15)(B) rather than under AS 11.81.900(b)(15)(A). But this mistake does not create the factual unanimity problem that existed in Foret.
Here, we can be confident that the jury convicted Galaktionoff of third-degree assault based on the only factual theory that was argued to it — that Galaktionoff’s hands qualified as a dangerous instrument because he attempted to strangle the victim. The prosecutor may have directed the jury to the wrong statutory subsection during closing arguments, but this does not alter the fact that the jury was properly instructed on the governing law and there was sufficient evidence to support Galaktionoff’s conviction for third-degree fear assault with a dangerous instrument.
Lastly, we find no merit to Galaktionoff’s argument that his conviction should be reversed because the jury did not receive a Konrad instruction. In Konrad v. State, we held that, in cases where the alleged “dangerous instrument” is not a “deadly weapon” and the defendant did not actually inflict death or serious physical injury, the grand jury should be expressly instructed on “the need for it to find, based on the evidence in the case before it, that the defendant used an instrument in a manner that actually created a substantial risk of death or serious physical injury.”  The primary purpose of the Konrad instruction — which has been extended to the petit jury context  — is to ensure that the jury understands that an object cannot be considered a “dangerous instrument” simply because it is capable of causing death or serious physical injury under certain hypothetical circumstances; instead, it is the manner in which it was used in that particular case that determines whether an object actually qualifies as a “dangerous instrument.” 
Here, the prosecutor made clear that he was not arguing that Galaktionoff’s hands constituted a “dangerous instrument” in the abstract. Instead, he was arguing that Galaktionoff’s hands constituted a “dangerous instrument” because Galaktionoff actually used them to try to strangle the victim. Under these circumstances, we conclude that any error in failing to provide a specific Konrad instruction is harmless.
Galaktionoff’s challenge to his probation conditions
Galaktionoff challenges two probation condition on appeal. Galaktionoff objected to both conditions at sentencing, and they were imposed over his objection. 
Galaktionoff first challenges the inclusion of marijuana in Special Probation Condition No. 4, which states, in relevant part: “The defendant shall not use, possess, handle, purchase, give or administer any controlled substance, including marijuana, without a valid prescription.” The superior court imposed this probation condition without making any findings. Because the basis for the inclusion of marijuana in this probation condition is not obvious from the record, we vacate this portion of the condition and remand this case for reconsideration of that provision.
Galaktionoff’s second challenge is to Special Probation Condition No. 10, which requires him to “actively participate in Alaska Department of Corrections’ approved treatment programming as directed by the probation officer” and to “sign and abide by all conditions of the treatment program.” Galaktionoff objected to this condition as overbroad. On appeal, the State agrees that the condition is overbroad. We conclude that this concession is well founded.  On remand, the superior court should provide greater specificity in the treatment Galaktionoff may be required to obtain.
We AFFIRM Galaktionoff’s conviction for third-degree assault, we VACATE Special Probation Conditions Nos. 4 and 10, and we REMAND this case to the superior court for reconsideration and amendment of the probation conditions. On remand, the superior should also amend the written judgment to reflect that the merged counts resulted in a single conviction of record. 
- We note that Galaktionoff’s written judgment erroneously described these counts as merged “for purpose of sentencing.” As we explained in Nicklie v. State, 402 P.3d 424, 425-26 (Alaska App. 2017), this is incorrect and must be corrected on remand.
- Former Alaska R. Crim. P. 6(r)(6) (2016).
- We also question whether reversal for a re-indictment would be the appropriate remedy in this case given that the law is now clear that the State may use APSIN records for recidivist crimes and the presentation of the case to the grand jury would not look any different than it did before.
- Foret v. State, 2008 Alas. App. LEXIS 116, 2008 WL 5025422, at *2-3 (Alaska App. Nov. 26, 2008) (unpublished).
- Konrad v. State, 763 P.2d 1369, 1374-75 (Alaska App. 1988).
- Bowlin v. State, 2015 WL 5918178, at *3 (Alaska App. Oct. 7, 2015) (unpublished).
- Konrad, 763 P.2d at 1375.
- See State v. Ranstead, 421 P.3d 15, 20-22 (Alaska 2018).
- See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess whether a concession of error is “supported by the record on appeal and has legal foundation”).
- See Nicklie v. State, 402 P.3d 424, 425-26 (Alaska App. 2017).