Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

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, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

) Supreme Court No. S-16466 

Court of Appeals No. A-11425 

Superior Court No. 3AN-11-10574CR 

O P I N I O N 

No. 7323 – December 21, 2018 

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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 

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

(continued...) 

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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 crossexamination 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”). 

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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 

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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. 

The bracketed language was omitted from the trial transcripts, but the 

alterations were agreed upon by the parties as present in the audio recording. 

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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 

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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 

6 previous case of Rogers v. State, 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. 

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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 threepart 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. 

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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)). 

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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 (AM. BAR ASS’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 

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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 & DEFENSE 

FUNCTION § 3-6.8(c) (AM. BAR ASS’N 4th ed. 2015). 

25 See Adams v. State, 261 P.3d 758, 773 (Alaska 2011). 

26 Id. at 774. 

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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)). 

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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. 

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