Reid Duard Hayes v. State of Alaska

NOTICE
This is a summary disposition issued under Alaska Appellate Rule 214(a).
Summary dispositions of this Court do not create legal precedent. See Alaska
Appellate Rule 214(d).
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
REID DUARD HAYES,
Appellant,
v.
STATE OF ALASKA,
Appellee.
Court of Appeals No. A-14347
Trial Court No. 3AN-21-05539 CI
SUMMARY DISPOSITION
No. 0501 — October 14, 2026
Appeal from the Superior Court, Third Judicial District,
Anchorage, Christina Rankin, Judge.
Appearances: Olena Kalytiak Davis, Attorney at Law,
Anchorage, under contract with the Office of Public Advocacy,
for the Appellant. Madeline M. Magnuson, Assistant Attorney
General, Office of Criminal Appeals, Anchorage, and Stephen
J. Cox, Acting Attorney General, Juneau, for the Appellee.
Before: Wollenberg and Beach, Judges, and Bolger, Senior
Supreme Court Justice.
 Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
Reid Duard Hayes appeals the superior court’s dismissal of his application
for post-conviction relief, in which he argued that his trial attorney provided ineffective
assistance of counsel.

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In 2016, Hayes was convicted, following a jury trial, of several counts of
sexual abuse and attempted sexual abuse of a minor for conduct related to three minors.
During the pendency of the case and upon Hayes’s motion, the superior court ordered
the State to produce, for in camera review, the Office of Children’s Services records
related to one of the children. But the file was accidentally destroyed by the State’s
shredding contractor. Although the State was able to re-create the portions of the file
containing statements by the children and medical providers, the full universe of
documents in the missing file was ultimately unknowable. At trial, the superior court
gave the jury a permissive Thorne instruction informing them that they were “free to
consider” whether the destroyed records would have been favorable to the defense.1
After we affirmed Hayes’s convictions on direct appeal, Hayes filed an
application for post-conviction relief.2 In Hayes’s amended application, filed by
appointed counsel, Hayes argued that his trial attorney had provided ineffective
assistance of counsel by failing to request a mandatory Thorne instruction (which would
have required the jury to presume that the destroyed records were favorable to the
defense) and by failing to object when the court decided to issue a permissive Thorne
instruction. Hayes attached an affidavit from his trial attorney in which the attorney
stated that he had “erred” in failing to request a mandatory Thorne instruction or object
to the court’s permissive instruction.
Hayes moved for summary disposition of his claim. The superior court
denied Hayes’s motion. The court concluded that the only potential issue of material
fact was whether Hayes’s trial attorney had requested a mandatory Thorne instruction.
Based on its review of the trial transcript, the court found that the trial attorney had
requested a mandatory Thorne instruction and that the trial court had understood that
1 See Thorne v. Dep’t of Pub. Safety, 774 P.2d 1326, 1331-32 (Alaska 1989).
2 See Hayes v. State, 474 P.3d 1179, 1190 (Alaska App. 2020). In his direct appeal,
Hayes did not raise a claim related to the Thorne instruction.

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the attorney was requesting a mandatory instruction. The superior court therefore
concluded that there was no genuine issue of material fact and that Hayes had not
demonstrated that he was entitled to judgment as a matter of law.
The State then filed its own motion for summary disposition.3 The court
again found that there was no genuine issue of material fact and that the State was
entitled to judgment as a matter of law because Hayes’s trial attorney had not been
incompetent and had not caused him prejudice.4 In particular, the court concluded that
more enthusiastic advocacy by defense counsel would not have changed the trial court’s
decision, which was grounded in the case law and the facts of the case. The court
granted the State’s motion.
Hayes now appeals the court’s order dismissing Hayes’s application,
raising two claims.
First, Hayes argues that, because the superior court was required to view
the facts in the light most favorable to him when ruling on the State’s motion for
summary disposition, the court erred in adopting by reference its findings from its prior
order denying Hayes’s motion for summary disposition.5 But the court’s conclusion that
3 The State styled its motion as a “motion to dismiss,” but the superior court treated
it as a motion for summary disposition given the State’s arguments therein. See Alaska R.
Crim. P. 35.1(f)(3).
4 See Alaska R. Crim. P. 35.1(f)(3) (“The court may grant a motion by either party
for summary disposition of the application when it appears from the pleadings, depositions,
answers to interrogatories, and admissions and agreements of fact, together with any
affidavits submitted, that there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.”); Risher v. State, 523 P.2d 421, 425 (Alaska 1974)
(setting out the two-part test for ineffective assistance of counsel).
5 We have acknowledged that a motion for summary disposition in a post-conviction
relief proceeding is analogous to a civil motion for summary judgment under Alaska Civil
Rule 56. State v. Jones, 759 P.2d 558, 566 (Alaska App. 1988). Under Civil Rule 56, facts
are viewed in the “light most favorable” to the nonmoving party. Trombley v. Starr-Wood

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there was no genuine issue of material fact was based on its objective review of the trial
transcript and the court properly viewed that evidence in the light most favorable to
Hayes.
Hayes argues that the affidavit from his trial attorney, attesting that the
attorney had failed to request a mandatory Thorne instruction and had erred in doing
so, created a genuine issue of material fact. But the court was not required to credit the
attorney’s affidavit to the extent it was clearly contradicted by the trial record.6 And the
attorney’s assertion that he had “erred” did not create an issue of ineffective assistance,
which is ultimately a legal question and not a factual one.7
Second, Hayes argues that the court erred in concluding that his trial
attorney was not ineffective. But we agree with the superior court’s conclusion,
particularly given that Hayes’s trial attorney did advocate for a mandatory Thorne
instruction. The trial court grounded its decision to give a permissive, rather than a
mandatory, Thorne instruction on findings that the shredding of the Office of Children’s
Services file had been accidental, that much of the destroyed material was ultimately
recovered from other files, and that the lost information was of little significance
Cardiac Grp., 3 P.3d 916, 919 (Alaska 2000) (citing Husky Oil N.P.R. Operations, Inc. v.
Sea Airmotive, Inc., 724 P.2d 531, 533 (Alaska 1986)).
6 Cf. LaBrake v. State, 152 P.3d 474, 481 (Alaska App. 2007) (noting that in
considering a motion for judgment on the pleadings, “the court need not assume the truth
of assertions that are patently false or unfounded, based on the existing record or based on
the court’s own judicial notice”); Talmadge v. State, 579 P.3d 1204, 1211 (Alaska App.
2025) (holding that the post-conviction relief court was entitled to disregard applicant’s
factual assertions where the record showed they were “patently false”).
7 See Esmil v. State, 2026 WL 1091117, at *2 (Alaska App. Apr. 22, 2026)
(unpublished) (describing “whether a set of factual determinations qualifies as ineffective
assistance” as a “conclusion[] of law” (citing Jackson v. State, 750 P.2d 821, 825 (Alaska
App. 1988))).

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compared to the evidence that was ultimately introduced at trial.8 As the superior court
noted, there is no indication that, had counsel engaged in more thorough advocacy in
favor of a mandatory instruction, the trial court would actually have given such an
instruction. Nor is there any indication that, even if the attorney had succeeded in
securing a mandatory Thorne instruction, the outcome of the trial would have been
different.9
We therefore AFFFIRM the order dismissing Hayes’s application for
post-conviction relief.
8 Thorne v. Dep’t of Pub. Safety, 774 P.2d 1326, 1331 (Alaska 1989) (recognizing
that, in determining the appropriate sanction for lost evidence, a court should “look to the
degree of culpability on the part of the state, the importance of the evidence lost, the
prejudice suffered by the accused, and the evidence of guilt adduced at the trial or
hearing”).
9 Risher, 523 P.2d at 425 (“If the first burden [of showing incompetence] has been
met, all that is required additionally is to create a reasonable doubt that the incompetence
contributed to the outcome.”).