Daniel James Gadomski, n/k/a Just Danny v. State of Alaska, A13840

After a jury trial, Gadomski was convicted of first-degree sexual assault and second-degree assault arising from an incident with B.N. on June 2, 2015. 1
B.N. reported to police and SART medical personnel that consensual sex became nonconsensual when Gadomski strangled and hit her, and nurses documented extensive bruising and strangulation indicators. 2
Gadomski initially denied any sexual or physical contact with B.N. during police interviews, but at trial he admitted consensual sex and claimed the later force was self-defense or to create space. 3
Because B.N. could not remember much at trial, the State relied heavily on her prior statements, injuries, photographs, DNA evidence, and Gadomski's police interviews. 4
The prosecutor cross-examined Gadomski about his failure to return to police to correct his prior statements and about his failure to subpoena corroborating records, and the court gave a prior-inconsistent-statements instruction. 5
The jury convicted Gadomski on all counts, the assault counts merged, and he appealed. 6

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutor's cross-examination on silence 7	Gadomski says the prosecutor improperly used his silence to impeach him.	State says the questions were proper impeachment or harmless.	The questioning was improper. 8
Whether silence error was constitutional 9	Gadomski says post-Miranda silence made the error constitutional.	State says the questions were mostly pre-arrest and nonconstitutional.	The post-Miranda questioning was constitutional error. 10
Harmlessness of silence error 11	Gadomski argues the improper questioning prejudiced both convictions.	State says any error was harmless beyond a reasonable doubt.	Harmless for second-degree assault, but prejudicial for first-degree sexual assault. 12
Prior-inconsistent-statements jury instruction 13	Gadomski argues the instruction was incomplete and slanted toward the State.	State says the instruction was proper and harmless.	Any instructional error was harmless as to the remaining assault conviction. 14
Sufficiency of evidence on sexual assault 15	Gadomski seeks acquittal, not retrial, for insufficient evidence.	State says the evidence was enough for retrial.	Evidence was sufficient; retrial allowed. 16

Griffin v. California, 380 U.S. 609 (U.S. 1965) (comment on a defendant's silence violates the Fifth Amendment 17)
Adams v. State, 261 P.3d 758 (Alaska 2011) (Alaska forbids comment on pre- and post-arrest silence and uses harmless-beyond-a-reasonable-doubt review for constitutional error 18)
Doyle v. Ohio, 426 U.S. 610 (U.S. 1976) (post-Miranda silence may not be used for impeachment 19)
Jenkins v. Anderson, 447 U.S. 231 (U.S. 1980) (federal law generally allows impeachment with pre-arrest silence 20)
Beavers v. State, 492 P.2d 88 (Alaska 1971) (prior inconsistent statements may be admitted as substantive evidence 21)
Silvernail v. State, 777 P.2d 1169 (Alaska App. 1989) (silence is ambiguous and generally has low probative value with high prejudice risk 22)
Leffel v. State, 404 P.3d 196 (Alaska App. 2017) (improper to suggest a defendant had an obligation to go to authorities or review discovery 23)