## Facts

- The State of Alaska charged Dan Russell with sexually assaulting (raping) his estranged wife, T.R., based on an incident on July 1, 1994.
- The State’s evidence included prior incidents of domestic violence by Russell against T.R. in 1993.
- In one 1993 incident, Russell beat and choked T.R. until she lost consciousness, and she had to be medevacked for medical treatment.
- In a second 1993 incident, Russell punched T.R. while she was out with a friend, and she required hospital treatment.
- Russell and T.R. separated in March 1994; T.R. and her 12-year-old son, Jeffrey, stayed at a shelter.
- After the separation, Russell repeatedly pursued and harassed T.R., including violating a restraining order.
- Russell wrote T.R. numerous letters referencing his desire to have sex with her and stating that if she refused, he would rape her.
- On July 1, 1994, Russell encountered T.R. and Jeffrey near the shelter; the three went out to eat.
- Afterward, T.R. walked with Russell to his hotel room, and Russell gave Jeffrey money to play video games elsewhere.
- T.R. testified that Russell raped her in the hotel room when they were alone.
- Russell testified the sexual encounter was consensual and that T.R. later accused him of rape because she felt guilty and believed her counselors did not want her to have sex with him.
- Russell later wrote T.R. a note apologizing for “forc[ing]” her to have sex.
- At trial, the State introduced the prior domestic-violence incidents as other-acts evidence; Russell’s trial counsel did not present rebuttal evidence to contest those incidents, and instead argued they did not prove rape occurred on July 1 and attacked T.R.’s motives to lie.
- A jury convicted Russell of sexual assault; his conviction was affirmed on direct appeal.
- Russell then sought post-conviction relief, arguing ineffective assistance of counsel based on trial counsel’s failure to rebut the domestic-violence other-acts evidence.
- The post-conviction court denied relief, and Russell appealed that denial.

## Issues

1. Whether Russell proved ineffective assistance of trial counsel based on counsel’s decision not to rebut the State’s evidence of Russell’s prior domestic violence against T.R.
2. Whether Russell showed prejudice—i.e., a reasonable probability that rebutting the prior-acts evidence would have changed the verdict in the July 1, 1994 sexual-assault trial.

## Decision

- The Alaska Court of Appeals reviewed the denial of Russell’s petition for post-conviction relief.
- The court concluded Russell failed to establish ineffective assistance of counsel under the governing performance-and-prejudice standard.
- The court held that counsel’s approach to the prior-acts evidence fell within the range of reasonable trial strategy and, in any event, Russell did not show a reasonable probability of a different outcome.
- The court affirmed the order denying post-conviction relief.

## Legal Principles

- A defendant seeking post-conviction relief for ineffective assistance must prove (1) deficient performance measured against an objective standard of reasonableness and (2) prejudice—a reasonable probability that the result would have been different without the alleged errors.
- Courts give substantial deference to reasonable tactical choices by defense counsel, including choices about whether to contest damaging other-acts evidence or instead focus the jury on the charged incident and witness credibility.
- Even if a defendant identifies a potential alternative defense approach, post-conviction relief is unavailable without a concrete showing that the alternative would likely have altered the verdict.
- When the trial record contains strong evidence supporting conviction, a post-conviction claim may fail for lack of prejudice even if the defendant challenges counsel’s handling of collateral or background evidence.

## Conclusion

The Alaska Court of Appeals affirmed the denial of Dan Russell’s post-conviction petition, holding that he did not establish ineffective assistance based on trial counsel’s decision not to rebut the State’s domestic-violence other-acts evidence and that he failed to show a reasonable probability that the jury would have acquitted him if counsel had contested those prior incidents.


State v. Russell, 2002 WL 31667313 (2002)