In Kasgnoc v. State,[1] the court of appeals found that the trial court had erred in admitting evidence of a prior sexual assault under the consent defense exemption outlined in Alaska Evidence Rule 404(b)(3), but affirmed the admission under Alaska Evidence Rule 404(b)(4) on the grounds that both the current and previous conduct qualified as crimes involving domestic violence. Adam Kasgnoc Sr., who had previously been convicted of sexually abusing one daughter, was indicted on the charge of second-degree sexual assault and incest for sexually penetrating his twenty-year-old daughter. Kasgnoc argued that no sexual penetration had occurred, instead arguing that his daughter had made sexual advances on him and that he had rejected them. At trial, the prosecutor moved to admit the evidence of the prior conviction under either 404(b)(3), which allowed for the admission of previous crimes of sexual assault when the defendant raises a consent defense against a current charge of sexual assault, or 404(b)(4), which allows for the admission of previous crimes involving domestic violence in a current trial alleging a crime involving domestic violence (which includes incest). The judge initially ruled that since the defendant was not raising a defense of consent, 404(b)(3) was both inapplicable and precluded the use of the more lenient 404(b)(4) admission. However, Kasgnoc was convicted after the judge eventually allowed the prior conviction to come in under 404(b)(3) after deciding that Kasgnoc’s testimony did classify as using consent as a defense. On appeal, Kasgnoc argues: 1) that the trial court improperly labeled his defense as using consent as a defense and thus 404(b)(3) shouldn’t have applied; and 2) that when 404(b)(3) does not apply in a sexual assault case, 404(b)(4) also cannot apply. The court of appeals agreed with Kasgnoc that his defense, which was that no sexual penetration had occurred, did not qualify as a defense of consent, and thus the trial court erred by admitting the evidence under 404(b)(3). However, the court found that the two statutes were not mutually exclusive in cases of sexual assault involving “household members,” as that was a crime that met the statutory definition of “domestic violence” included in 404(b)(4). After further finding that the trial court had not abused its discretion when it found that the prior crime was both relevant and more probative than prejudicial, the court of appeals held that the prior crime had been properly admitted and thus affirmed the conviction.
[1] 448 P.3d 883 (Alaska Ct. App. 2019).
