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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JAMES E. KOSBRUK, )
) Court of Appeals No. A-2971
Appellant, ) Trial Court No. 3AN-S88-3831 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
) [No. 1172 - November 8, 1991]
Appellee. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Joan M. Katz, Judge.
Appearances: Rex Lamont Butler, Anchorage,
for Appellant. Shelley K. Chaffin, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Douglas B. Baily, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
ANDREWS, Judge.
James E. Kosbruk was convicted of two counts of second-
degree sexual abuse of a minor in violation of AS
11.41.436(a)(2). Kosbruk was sentenced to six years with one
year suspended on each count. The sentences were ordered
concurrent. Kosbruk also received a five year term of probation.
Kosbruk appeals his conviction claiming the court erred on
several evidentiary matters. He appeals his sentence claiming
the court improperly rejected a mitigating factor. We affirm.
Kosbruk was visiting the home of Mr. and Mrs. S., when
Mr. and Mrs. S. decided to go to the video store. They brought
one of their four children with them. The other three children
remained at home with Kosbruk.
While they were gone, Kosbruk asked L.S., their nine-
year-old daughter, to sit on his lap. L.S. sat on one of
Kosbruk's knees, and Kosbruk put his hand under her shirt and on
her chest. He then put one hand down her pants and rubbed around
her "privates." L.S. attempted to get off of Kosbruk's lap, but
he held onto the back of her shirt. L.S. got away after Kosbruk
let go of her.
Mr. and Mrs. S. returned home within twenty to thirty
minutes from the time they had left the house. They found L.S.
alone in her dark bedroom. Mrs. S. testified that it was unusual
for L.S. to sit in dark rooms. Mr. S. claimed that usually L.S.
would come out and greet him when he entered the house. L.S.
appeared upset and ready to cry. Mrs. S. asked L.S. "what was
the matter?" According to Mrs. S., L.S. told her that Kosbruk
"had put his hands on her body -- on her chest." Mrs. S. also
testified that she thought L.S. said that Kosbruk "put his whole
hands in her pants." Mr. S. overheard L.S. tell her mother about
the abuse. Mr. S. asked Kosbruk, "What did you do to my
little girl?" Kosbruk did not reply and Mr. S. told L.S. to tell
Kosbruk what she had told him. L.S. asked Kosbruk, "Why did you
do these things to me?" Kosbruk replied that he had not done
anything to L.S. L.S. told Kosbruk that he had touched her.
Angered, Mr. S. began hitting Kosbruk. Mr. S. grabbed a knife
and Mrs. S. intervened, allowing Kosbruk to escape.
Mrs. S. drove to a nearby store to call the police,
since they did not have a phone. Officer Linda Branchflower was
in the store's lot investigating another incident when Mrs. S.
approached her. She told Officer Branchflower that her "husband
just got into a fight and that the guy had bothered [her]
daughter." Officer Branchflower went to the S.'s house and
interviewed L.S., who told her that Kosbruk had touched her
underneath her clothes, indicating her chest area, and where she
goes to the bathroom. Officer Branchflower, believing that
Kosbruk had digitally penetrated L.S.'s vagina, brought L.S. to
Anchorage Native Services Hospital for an examination. She then
brought L.S. to the Anchorage Police Department where Richard
Mills, an investigator with the child sexual abuse unit,
interviewed L.S. The investigation resulted in Kosbruk being
charged with two counts of second degree sexual abuse of a minor.
He was tried by a jury and convicted. During the course of the
trial, Mrs. S. was allowed to testify about L.S.'s statement of
abuse. The state was allowed to impeach the victim with a prior
inconsistent statement. Officer Mills was allowed to testify
about his experience in interviewing children and the likelihood
of finding medically corroborating evidence. Kosbruk attacks
these rulings. We address them.
Mrs. S.'s Testimony
Kosbruk objected to the following testimony at trial:
PROSECUTOR: Now what exactly did
she tell you?
MRS. S.: I believe . . .
DEFENSE COUNSEL: Objection.
Hearsay.
THE COURT: I think it's first
complaint.
PROSECUTOR: Would be admissible
under Greenway, Your Honor.
THE COURT: Overruled.
PROSECUTOR: What did she tell
you?
MRS. S.: I believe she told
me that he -- she said he had put his
hands on her body. On her chest. And I
think she said he put his whole hands in
her pants.
Kosbruk argues that this testimony elicited details
regarding the victim's complaint of sexual abuse. He contends
that Greenway v. State, 626 P.2d 1060, 1061 n.4 (Alaska 1980),
"precludes the introduction of testimony as to the `details' of
L.S.'s first complaint."
In Nitz v. State, 720 P.2d 55 (Alaska App. 1986) and
Nusunginya v. State, 730 P.2d 172 (Alaska App. 1986), this court
decided whether a witness' testimony regarding a complaint was
too detailed to fall within the "first-complaint" hearsay
exception. The court commented that
[t]here has been a marked trend toward
relaxation of the traditional restrictions
governing admission of evidence of the
victim's first complaint. More recent
decisions have recognized the
appropriateness, within the reasonable limits
of the trial court's discretion, of allowing
details of a first complaint of sexual
assault to be admitted for the purpose of
enabling the jury to obtain a fair
understanding of the circumstances under
which the complaint was made.
Nitz, 720 P.2d at 63 (citation omitted). In Nitz, the complaint
was admissible, since it was not particularly detailed and the
defendant's identity was not in issue. Id. At issue in Nitz, as
it is in the present case, was whether the assault occurred, not
whether the defendant was the perpetrator. Id.
In Nusunginya, the witnesses' testimony, which repeated
the victim's complaint, "did not provide any significant detail,
apart from establishing that the victim had identified Nusunginya
as her assailant." 730 P.2d at 173.
In the current case, this first complaint is no more
detailed than the complaint in Nusunginya. Id. Like the
testimony in Nusunginya, Mrs. S.'s statement was brief and did
not provide any significant detail; whereas, L.S.'s statements
concerning the abuse were considerably more detailed. In
addition, the significance of Mrs. S.'s statements is lessened
since Kosbruk's identity was never in issue. Nitz, 720 P.2d at
63. The trial court did not abuse its discretion by overruling
Kosbruk's objection to Mrs. S.'s statement and admitting the
statement under the first-complaint exception to the hearsay
rule.
Impeachment of L.S.
At trial, L.S. testified that Kosbruk rubbed "around,"
but did not touch her "privates." Officer Linda Branchflower was
asked to testify regarding L.S.'s prior inconsistent statement
that Kosbruk "touched her where she goes to the bathroom."
Kosbruk objected on hearsay grounds and directed the court to
Alaska Evidence Rules 801(d)(1)(A) and 613. The court overruled
the objection. On appeal, Kosbruk argues that the court should
not have overruled the objection because the state failed to lay
a proper foundation since L.S. was not given an opportunity to
explain or deny the statement.
Both parties concede that L.S. testified that Kosbruk
did not touch the area from which she goes "pee."
Q: When -- when Mr. Kosbruk touched you in your pants
. . .
A: Yes.
Q: . . . did he put his hands around your privates or
did he touch on the spot where you go pee?
A: He was rubbing around it.
Q: He was rubbing around it[?]
A: Yes.
Q: Okay. Did he touch on it? Do you remember?
A: No.
Q: You don't remember.
A: Yes.
L.S., however, also testified that she had told Officer
Branchflower that Kosbruk touched her where she goes to the
bathroom.
Q: [D]id he ever put his fingers inside you where
you where you go bathroom?
A: No.
Q: No? Okay. (Pause.) [L.S.], do you remember
talking to Officer Branchflower, a lady police
officer?
A: Um-hum. Yes.
Q: Did you talk with her that night?
A: Yes.
Q: Did she ask you about what happened?
A: Yes.
Q: And did you tell Officer Branchflower that Mr.
Kosbruk was touching you where you go bathroom?
A: Yes.
The trial court has considerable latitude to decide
when a sufficient foundation has been laid for the admission of a
prior inconsistent statement. Bodine v. State, 737 P.2d 1072,
1074 (Alaska App. 1987). This is particularly true when the
witness who made the inconsistent statement is a child. Id.
Alaska Evidence Rule 613(b) states,
in pertinent part: [B]efore extrinsic
evidence of a prior contradictory statement
or of bias or interest may be admitted, the
examiner shall lay a foundation for
impeachment by affording the witness the
opportunity, while testifying, to explain or
deny any prior statement, or to admit, deny
or explain any bias or interest, except as
provided in subdivision (b)(1) of this rule.
(1) The court shall permit witnesses to
be recalled for the purpose of laying a
foundation for impeachment if satisfied that
failure to lay a foundation was for good
cause; even if no foundation is laid, an
inconsistent statement may be admitted in the
interests of justice.
In Bodine, we determined that the nature of the
questioning of the victim provided her with sufficient
opportunity to explain or deny two prior inconsistent statements.
737 P.2d at 1075. This was true even though the prosecutor never
asked the victim specifically about two prior inconsistent
statements she had made to a social worker and a police officer.
Id. We concluded that "[a]lthough the prosecutor could certainly
have been more specific in disclosing to [the victim] the date of
her prior statements, the persons to whom they were made, and
their precise contents, the questions actually asked were, in
context, adequate to alert [the victim] to her prior interviews"
with a social worker and a police officer. Id.
L.S., unlike the victim in Bodine, was asked about the
very statement she had made to Officer Branchflower: L.S. was
asked whether she had told Office Branchflower that Kosbruk had
touched her where she goes to the bathroom. Consequently, L.S.
was given a chance to explain or deny her earlier statement to
Officer Branchflower and a proper foundation was laid for
admission of L.S.'s prior inconsistent statement. The trial
court properly overruled Kosbruk's objection to the introduction
of the prior inconsistent statement.
Officer Mills' Testimony
Anchorage Police Department Investigator Richard M.
Mills interviewed L.S. At trial, the prosecutor asked
Investigator Mills, "[I]n [your] experience with interviewing
children, are they -- at the age of nine, are they sometimes a
little difficult to understand?" Kosbruk objected on relevance
grounds. The prosecutor also asked Mills whether he would be
surprised to see a sexual assault case in which there was no
medical evidence. Kosbruk again objected, claiming that the
question called for an answer outside the scope of Kosbruk's
profession. The prosecution laid a foundation for Mills'
testimony and the court ultimately overruled both objections.1
On appeal, Kosbruk argues that Mills was not qualified
as an expert "in the field of investigation of child abuse
cases," and, consequently, his testimony was irrelevant.
Kosbruk also argues that the state should have notified the
defense that Mills would be testifying as an expert so that the
defense could have had an opportunity to obtain contrary expert
opinions.2 The state argues that Kosbruk failed to preserve this
argument for appeal because his objection at trial was based on
relevancy consider- ations rather than the argument that Mills
was not qualified as an expert. In addition, the state contends
that expert testimony was not required in this case and that
Officer Mills was properly permitted to testify about his
experience as an officer in a specialized unit.
Alaska Rule of Evidence 702(a) provides:
[I]f scientific, technical, or other
specialized knowledge will assist the trier
of fact to understand the evidence or to
determine a fact in issue, a witness
qualified as an expert by knowledge, skill,
experience, training, or education, may
testify thereto in the form of an opinion or
otherwise.
The question to ask when deciding whether to admit expert
testimony is whether that testimony will assist the jury in
reaching a just verdict. Rodriguez v. State, 741 P.2d 1200, 1203
(Alaska App. 1987). "Many times the jury can be aided by
background information which might tend to explain certain
behavior." Id.
Mills worked as an investigator in the child sexual
assault unit for nearly four years and had received approximately
120 hours of specialized training in the areas of sexual assault,
child sexual abuse, and child exploitation. He had investigated
over 400 cases, during which he had interviewed over 1100
children. Approximately sixty to seventy percent of the cases he
investigated involved children who had been medically examined.
Mills' experience gave him information not within the ken of an
ordinary juror. His experience could assist the jury in
determining why L.S. gave a statement to the jury which was
inconsistent with the one she gave Officer Branchflower. In
addition, unlike the average person, Mills had experience which
taught him that it would not be unusual for a sexual abuse
complaint to be uncorroborated by medical evidence.
Kosbruk never claimed that Mills was not qualified as
an expert child abuse investigator. He merely objected to his
testimony by claiming it was irrelevant and beyond the scope of
his professional knowledge. Given Mills' qualifications and
Kosbruk's failure to make a specific objection, the court did not
abuse its discretion by admitting Mills' testimony. See Williams
v. State, 629 P.2d 54, 62 (Alaska 1981) (an incomprehensible
objection fails to preserve a point for appeal).
Sentence
In the current case, Kosbruk was convicted of two
counts of second-degree sexual abuse of a minor, class B
felonies. Kosbruk, a second-felony offender, was subject to a
presumptive sentence of four years on each count. AS
12.55.125(d)(1).3 Judge Katz found that Kosbruk's offense was
aggravated by two factors: (1) the particular vulnerability of
the victim; and (2) Kosbruk's status as a parolee at the time of
the current offense. AS 12.55.155(c)(5) and (20).4 Judge Katz
sentenced Kosbruk to six years with one year suspended on each
count and ordered the sentences to run concurrently.
Kosbruk claims that the court improperly rejected one
of his proposed mitigators at sentencing. He claims that his
conduct was among the least serious contained within the
definition of the offense, AS 12.55.155(d)(9), but that the court
rejected this mitigator by relying on improper considerations,
such as the effect of the offense on the household and the fact
that the victim had been sexually assaulted before this incident
by another individual. Kosbruk argues that the court should only
have considered his behavior when considering the proposed
mitigator. At sentencing, Kosbruk argued that the offense was
mitigated because Kosbruk was drunk and he only touched L.S. once
on the chest and once on the vagina.
Judge Katz gave a number of reasons supporting her
rejection of the mitigator.
[T]here were a couple of things about it that
make me disinclined to find that the
mitigator has been established by clear and
convincing evidence. First of all there is
the aspect of some force. Not a great deal,
but some force was used. The child did
resist, the testimony was, and she was not
initially able to get away. So it isn't a
question as apparently was true in either
S.B. or the Benboe case that S.B. in turn
relied on. That as soon as there was a
protest, the perpetrator allowed the victim
to get away. So, that is a factor I've
considered. I also recall two things from
the trial. One was I believe her mother --
[L.S.'s] mother testified that this was not
the first incident for this child, and that's
why they were particularly alerted and
concerned about it. Not with -- not with Mr.
Kosbruk. Not at all. But in terms of the
harm occasioned that that was why there was
such a sense of alarm. That combined with
the fact that there was this incredibly
emotional scene when the father got involved
and started attacking Mr. Kosbruk -- and I've
considered whether it's appropriate to look
at that since that wasn't directly Mr.
Kosbruk's conduct, but if we're looking at
what this child was going through, she -- she
tells her parents that this has happened to
her, and, you know, there's this incredibly
violent disruption in her household as a
result. I think we have to say that the
initial cause of all that was what Mr.
Kosbruk did to her. With obviously some
intervening action on the part of the father.
. . . I should note, in terms of a record,
that even had I found the mitigator, I think
that on balance with the aggravators I found
I would not have modified the sentence I'm
going to impose.
Judge Katz did not abuse her discretion in rejecting
the proposed mitigator. The fact that the sexual abuse occurred
only once does not serve to mitigate the offense. State v.
Woods, 680 P.2d 1195, 1198 (Alaska App. 1984). The use of force
by Kosbruk was enough to refute the mitigator. Additionally, the
fact that Kosbruk elected to molest a victim who was only nine
years old aggravated his conduct. In short, Kosbruk failed to
meet his burden of establishing the existence of the mitigator.
Judge Katz' reliance on the effects of the abuse, which were
outside of Kosbruk's control, is therefore inconsequential.
Judge Katz' rejection of the least-serious-offense mitigator is
not clearly erroneous.
Judge Katz did not abuse her discretion by overruling
Kosbruk's evidentiary objections. The trial court's judgment and
sentence should be AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1 The pertinent testimony of Investigator Mills follows:
PROSECUTOR: In your experience
with interviewing children, are they --
at the age of nine, are they sometimes a
little difficult to understand?
MILLS: Yes, they are.
DEFENSE: Objection as to
relevance. In reference to -
THE COURT: I don't -- I don't
follow your objection. I don't know
exactly where Mr. McLaughlin is going,
but I think it's permissible. Go ahead.
PROSECUTOR: Investigator Mills,
would it surprise you, sir, if you were
dealing -- in your experience dealing
with a case of sexual contact, that
there would be no medical evidence of
touching of the breast or the vagina?
MILLS: I would not be . . .
DEFENSE: Objection to that
kind of a conclusion.
THE COURT: I don't understand
the basis of your objection.
DEFENSE: Well, I think it
calls for speculation on the part of
this witness. I mean if a person had
touched. It depends on how hard the
touch. Whether they're going to leave
bruises and things like that. I mean
it's just -- it's -- it's a question
that has such a broad spectrum of
answers I don't -- I think its outside
the scope of this witness' professional
knowledge. I think that question is
better put to a doctor. What kind of
touching would leave marks and . . .
THE COURT: Well, you can lay a
greater foundation if you like.
PROSECUTOR: Okay.
PROSECUTOR: Investigator Mills,
in your experience -- you've dealt with
400 cases you've testified. Of child
sexual abuse.
MILLS: Yes, sir.
PROSECUTOR: In your experience,
sir, if someone had touched someone on
the surface, on their genitals with
their hand, not hard, would it surprise
you that there would be no medical
evidence of that -- no medical evidence
of penetration or bruising or anything
like that?
DEFENSE: Your Honor, I
object.
THE COURT: I think -- I mean
the -- the foundation needs to go more
towards how much experience he's had
with medical exams in this kind of case.
PROSECUTOR: Do you know,
Investigator Mills, how many cases you
have dealt with where there have been
medical exams?
MILLS: Not precisely. I
can . . .
PROSECUTOR: Can you give us a
percentage of the ones you've dealt
with?
MILLS: I would say
something between 60 and 70 percent of
the cases that I've been involved with
have involved medical examinations of
which I receive written reports of those
medical examinations and review those.
PROSECUTOR: Would it surprise
you then, sir, if -- that there would be
no medical evidence of contact? If that
contact was not --was not something
brutal or involved hitting or striking
or force?
MILLS: No, it would not
surprise me at all.
2 Kosbruk's claim that he was not notified that Mills
would be testifying as an expert is unavailing. Kosbruk never
raised this claim at trial when a continuance would have allowed
the defense to obtain expert witnesses. See Longley v. State,
776 P.2d 339, 343 (Alaska App. 1989) (the proper remedy for
nondisclosure of discoverable materials is a continuance unless
the defendant has shown strong prejudice).
3 The presumptive term for a third-felony offender is six
years. AS 12.55.125(d)(2).
4 Kosbruk has not challenged the court's finding of the
aggravators.
