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THE COURT OF APPEALS OF THE STATE OF ALASKA
RICK L. KITCHENS, )
) Court of Appeals No. A-5165
Appellant, ) Trial Court No. 3AN-S93-1247CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1414 - June 16, 1995]
Appellee. )
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Karl S.
Johnstone, Judge.
Appearances: David D. Reineke,
Assistant Public Defender, and John B.
Salemi, Public Defender, Anchorage, for
Appellant. Richard W. Maki, Assistant
District Attorney, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Rick L. Kitchens was convicted by a jury of two counts
of sexual assault in the first degree, AS
11.41.410(a)(1)(nonconsen-sual sexual penetration), one count of
sexual assault in the second degree, AS
11.41.420(a)(1)(nonconsensual sexual touching), one count of
burglary in the first degree, AS 11.46.300(a)(1), and one count
of robbery in the second degree, AS 11.46.510(a). Superior Court
Judge Karl S. Johnstone sentenced Kitchens to a total term of
sixteen years with four years suspended. Kitchens appeals,
contending that the trial court erred in restricting his
examination of a defense witness. Kitchens also claims that his
composite sentence is excessive. We affirm Kitchens' convictions
but remand for reconsideration of the sentence.
FACTS
Kitchens' convictions stem from an incident of sexual
assault reported by N.L. N.L.'s version of events differs
markedly from Kitchens'; we turn to N.L.'s version first.
1. N.L.'s Version
In September of 1992, N.L. lived in an apartment in
Anchorage with her fiance, M.W. The couple planned to spend
several days in M.W.'s hometown in Texas, where they intended to
announce their engagement. M.W. left for Texas on September 14
or 15. N.L. initially made arrangements to depart Anchorage on
an early morning flight on September 17. When that flight was
cancelled shortly before its scheduled departure, N.L. rebooked
herself on a flight leaving early the next morning, September 18.
On the evening of September 17, several hours before
she was due to leave, N.L. received a telephone call. The call
was from a man N.L. had spoken to on the telephone several times
during the past summer. The first time the man had called, N.L.
got the impression that he was Zane Vaughn, an assistant
wrestling coach at N.L.'s former high school whom N.L. had met
several years previously when she was in school and whom she had
dated once shortly after graduating; N.L. had a casual
conversation with the man. The same man had called N.L. three or
four more times during the summer, apparently just to talk.
During the subsequent telephone conversations, the man said
nothing to indicate that he was not Zane Vaughn, and N.L.
continued to assume that he was indeed Vaughn.
When the same man called N.L. on September 17, she
again thought that he was Vaughn. After N.L. told him that she
was leaving for Texas later that night to join her fiance, the
caller offered her a ride to the airport. N.L. accepted the
offer and asked the caller to pick her up shortly after midnight.
The caller told N.L. to leave her door unlocked.
At about 11:30 p.m., N.L. took a shower. As she walked
from the bathroom to her bedroom, she noticed a man seated on the
living room couch. N.L. closed her bedroom door and quickly put
on a bathrobe. She heard a knock on the bedroom door. When she
put her head out to say that she would be out as soon as she
finished dressing, N.L. encountered a man wearing white gloves
and a knit scarf over his face. The man grabbed N.L., covered
her mouth with his hand, and told her not to scream. He demanded
money, threatening to snap N.L.'s neck if she did not cooperate.
N.L. gave him approximately $200, which he placed into a brown
nylon bag that he had brought with him. The man proceeded to
sexually assault N.L., forcing her to engage in fellatio and
genital intercourse. N.L.'s assailant then fled the apartment,
threatening to kill her if she reported the incident.
N.L. did not immediately report the rape to the
authorities or to her fiance, M.W. She took a taxi to the
airport, caught her scheduled flight, and, upon arrival in Texas,
pretended that nothing unusual had happened. Although N.L.'s
reluctance to report the rape stemmed to a limited extent from
her assailant's death threat, her primary reason for failing to
report the incident promptly was her fear of M.W.'s jealous and
controlling nature: N.L. was afraid M.W. would not believe that
she had been raped and would suspect her of having an affair with
another man.
Almost three weeks after the alleged rape, on October
5, 1992 -- after N.L. and M.W. had returned to Anchorage -- an
anonymous caller telephoned N.L. and M.W.'s apartment. The
caller hung up as soon as M.W. answered the telephone. This
prompted N.L. to tell M.W. about the rape. Even though M.W. did
not believe N.L., he called the police, who came to the apartment
and interviewed her.
N.L. had not gotten a good look at her assailant.
Although the man differed somewhat from her memory of Zane
Vaughn, N.L. believed she had been raped by Vaughn, and she
reported this to the officer who interviewed her. During the
police interview, N.L. received a call from the man she believed
to be Vaughn. A portion of the conversation was recorded on
N.L.'s answering machine, and the police managed to trace the
call to the number from which it originated. At the end of the
conversation, N.L. told the caller to call her again two days
later, on October 7.
Subsequent investigation established that the call had
come from a telephone listed in Kitchens' name. The
investigation also disclosed that Zane Vaughn had not been in
Anchorage on the date of the alleged rape. After obtaining a
warrant, the police recorded the October 7 call to N.L.
Following a script that the police had given to her, N.L.
attempted to elicit incriminating statements from her caller.
Although the caller became suspicious in the course of the call,
he ultimately acknowledged: "You know I raped you, you know it
was force, but you loved it." Acting pursuant to a second
warrant, the police searched Kitchens' apartment; they seized a
brown nylon bag that N.L. identified as the bag that her
assailant had used to carry her stolen cash, as well as a pair of
shorts with an emblem on them that N.L. identified as having been
worn by her assailant.
2. Kitchens' Version
We turn next to Kitchens' version of events. At trial,
Kitchens testified in his own defense, admitting that he had
engaged in sexual intercourse with N.L. at her apartment, but
claiming that the act was consensual.1 Kitchens' theory of
defense was that N.L. had fabricated her charge of rape in order
to avoid having M.W. learn of her relationship with Kitchens.
According to Kitchens, he had become acquainted with
N.L. during the spring of 1992, when she and M.W. had visited an
outdoor show where Kitchens worked at a booth for his employer,
an automobile parts supplier. Kitchens claimed that, at the
show, N.L. had asked him about a problem she was having with her
car. He could not give her an answer without referring to
information in his company's parts computer, so he took N.L.'s
number and told her he would call her later.
Kitchens claimed that, when he called N.L. back, he
struck up a conversation with her. This led to further calls,
and eventually he and N.L. became good friends over the
telephone. Kitchens estimated that he had spoken to N.L.
hundreds of times over the telephone during the summer of 1992.
During these conversations, N.L. would frequently discuss her
personal life with Kitchens, would confide in him about problems
she was having with M.W., and would seek his advice.
Kitchens testified that when N.L. told him of her
impending trip to Texas, he offered her a ride to the airport and
arranged to meet her at her apartment. According to Kitchens he
had visited the apartment once before, in August. Kitchens
claimed that, after arriving on the evening of N.L.'s scheduled
departure, he and N.L. sat on the couch, talking about M.W. N.L.
told Kitchens that M.W. had been abusive toward her. Kitchens
urged her not to go on the trip. He and N.L. then began hugging
and kissing; N.L. made the first move. The two ultimately
engaged in sexual intercourse in the bedroom. After that, N.L.
became upset, saying that they should not have engaged in sexual
intercourse and blaming herself for what happened. N.L. insisted
that Kitchens leave, declining to ride with him to the airport.
Kitchens complied with her request.
3. Trial Court Rulings Restricting M.W.'s Testimony
In support of his defense, Kitchens called M.W. as a
witness at trial. Through M.W.'s testimony, Kitchens apparently
sought to emphasize N.L.'s delay in reporting the alleged rape
and generally to show that N.L.'s conduct and appearance in the
aftermath of the September 17 incident were inconsistent with her
claim of rape. Kitchens also evidently hoped to emphasize that
M.W. himself had been consistently skeptical of N.L.'s version of
events.
Kitchens' efforts to obtain favorable testimony from
M.W. met only limited success. The trial court restricted
Kitchens' questioning of M.W. in three instances.
a. N.L.'s Demeanor Upon Arrival in Texas
The first instance involved the topic of N.L.'s conduct
and appearance upon her arrival in Texas the day after the
alleged sexual assault. Kitchens' counsel asked M.W.: "Did
[N.L.] appear like she had been raped and she was in fear that
somebody was out there trying to kill her?" The prosecution
objected, contending that the question was speculative and
irrelevant. Defense counsel replied that M.W. was "entitled to
speak as to how [N.L.] appeared when she got down there[.]"
Judge Johnstone sustained the objection.
b. N.L.'s Grand Jury Rehearsal
The second instance of restriction centered on the
issue of N.L.'s grand jury testimony. During her cross-
examination at trial, N.L. testified about a quarrel with M.W.
that was precipitated by her grand jury testimony in April of
1993. N.L. described the following events. Soon after reporting
that she had been raped, N.L. enrolled in college in Texas and
moved there with M.W. In April of 1993, while she and M.W. were
in Texas, N.L. was required to appear by telephone before an
Anchorage grand jury. Shortly before the grand jury hearing,
N.L. spoke on the telephone with an assistant district attorney
from Anchorage in order to "rehearse" her proposed grand jury
testimony. M.W. was suspicious of N.L.'s account and wanted to
hear what had actually happened. He tried to convince N.L. to
allow him to listen to her grand jury testimony. N.L. resisted,
and she and M.W. quarrelled. M.W. became physically abusive
toward N.L.; this quarrel, in turn, ultimately led to the breakup
of N.L. and M.W.'s relationship.
As part of the defense case at trial, Kitchens' counsel
attempted to question M.W. about the "big fight in April" with
N.L. The prosecution objected on the ground of relevance.
Kitchens' counsel responded:
Well, she indicated on -- several times
on cross-examination that he hadn't been
abusive [before] and she did say, however,
that he was abusive after the incident. . . .
I want to tie it in with the grand jury
portion of it that he had suspicions about,
you know, the -- her veracity when she was
testifying at the grand jury and that's why
he wanted to sit in.
Judge Johnstone allowed defense counsel to make a formal offer of
proof by examining M.W. out of the presence of the jury. In
relevant part, the questioning went as follows:
Q Okay. Now, the rehearsal, who was that
with?
A I'm thinking Suzanne. I don't know. It was one
of the assistant DAs.
Q And that was a rehearsal over the phone as to
how . . .
A It was a rehearsal over the phone and I
called her . . .
Q Just -- please, we're just trying to make a
quick record. The rehearsal was with respect to
what?
A Grand jury for the next day.
Q Okay. In other words, she was rehearsing her
testimony over the phone with the district
attorney for grand jury testimony for the
following day.
A Correct.
Q Okay. Did you want to listen in to that --
not to the rehearsal, but to her grand jury
testimony?
A I -- I'd made the statement that yeah, I was
going to, that I would do that, but. . .
Q Why's that?
A Because I wanted to hear whatever was going
to be said. I wanted to know what the truth was.
Q Okay. Is that because you didn't believe
her?
A Well, yeah, I had doubts, yes.
Q Okay.
Judge Johnstone precluded the defense from pursuing
this line of inquiry. Upon concluding his offer of proof,
however, Kitchens' attorney further asked: "[C]ould I at least,
Judge, get from this witness that there was the rehearsal, a
telephone conversation?" The prosecution objected on the ground
that defense counsel was inappropriately attempting to elicit
M.W.'s opinion as to N.L.'s behavior. Judge Johnstone sustained
the objection and denied defense counsel's request.
c. N.L.'s Return to Alaska
The third instance in which the trial court restricted
Kitchens' examination of M.W. related to N.L.'s decision to move
back to Alaska during the spring of 1993 in order to take a job.
M.W. had advised N.L. not to return to Alaska. Kitchens'
attorney sought to question M.W. about N.L.'s willingness to
return to Alaska despite M.W.'s advice and despite her knowledge
that Kitchens had been released on bail after being charged with
sexual assault. Kitchens' attorney argued: "Well, I think it
goes to her state of mind that he's concerned, [`]why are you
taking this job when you know that this guy's out there on the
streets[,'] because he's worried about protecting her and she
seems totally carefree and unconcerned." Judge Johnstone
excluded the proposed testimony: "Your witness giving an opinion
she didn't seemed concerned about working on the slope . . .
there's nothing in the rules to provide for that."
DISCUSSION
On appeal, Kitchens challenges the trial court's
rulings as erroneous in each of the foregoing instances
involving restriction of M.W.'s testimony. As to each instance,
Kitchens asserts that the proposed testimony was relevant to
impeach N.L.'s credibility. Pointing out that evidence relating
to the demeanor of the complaining witness in a rape case has
frequently been held admissible to bolster the complainant's
credibility,2 Kitchens argues that the same rule should be
applied when demeanor evidence is offered to discredit the
complainant.3 Kitchens insists that exclusion of relevant
defense evidence amounts to constitutional error. See Michigan
v. Lucas, 500 U.S. 145, 151 (1991); Rock v. Arkansas, 483 U.S.
44, 55-56 (1987).
In response, the state maintains that Kitchens had no
right to have M.W. testify that he did not believe N.L.'s claim
of rape, since that testimony would amount to M.W.'s lay opinion
as to the truthfulness of N.L.'s testimony. The state analogizes
Kitchens' case to child sexual abuse cases in which this court
has disapproved of expert testimony offered to establish the
truthfulness of the complainant's report of abuse. See, e.g.,
Colgan v. State, 711 P.2d 533 (Alaska App. 1985). Alternatively,
the state argues that the trial court allowed Kitchens to
introduce abundant evidence of N.L.'s post-assault demeanor.
Both parties acknowledge that trial court rulings on
the admissibility of evidence are ordinarily subject to review
only for abuse of discretion. Hawley v. State, 614 P.2d 1349,
1361 (Alaska 1980); Garner v. State, 711 P.2d 1191, 1195 (Alaska
App. 1986). As Kitchens correctly points out, however, this
court has previously emphasized the importance of the defendant's
right to present favorable evidence and has expressly cautioned
that "[t]he fundamental nature of the right counsels strongly
against its grudging and parsimonious application." Shepard v.
State, 847 P.2d 75, 83 (Alaska App. 1993). With these principles
in mind, we examine each of the rulings disputed in this case.
1. N.L.'s Demeanor Upon Arrival in Texas
The propriety of the first ruling restricting M.W.'s
testimony, which centered on N.L.'s demeanor upon her arrival in
Texas immediately after the alleged assault, is the easiest to
deal with. N.L.'s demeanor on the day after the alleged rape was
certainly a legitimate area of inquiry for the defense. Contrary
to Kitchens' argument on appeal, however, Judge Johnstone did not
preclude Kitchens from questioning M.W. about N.L.'s appearance
and conduct in the immediate aftermath of the assault. Rather,
the judge simply sustained an objection to a single question
during Kitchens' redirect examination of M.W. that was
argumentative and called for speculation on M.W.'s part: "Did she
appear like she had been raped and she was in fear that somebody
was out there trying to kill her?"
By this point, M.W. had already testified on direct
examination that N.L. had given him no indication upon arriving
in Texas "that she might have been raped or traumatized or put in
fear[.]" He had also said that N.L. "seemed like the same [N.L.]
I'd known all along." Furthermore, M.W. had reiterated on cross-
examination that N.L. had given him no indication of "anything
being different or extraordinary" when she came to Texas after
the alleged rape. Finally, after Judge Johnstone sustained the
objection to the disputed question, Kitchens successfully pursued
the same point in a less argumentative way, asking M.W. if N.L.
had given him "any inkling at all" that she had been raped; M.W.
replied that she had not.4 Given these circumstances, we find no
abuse of discretion.
2. N.L.'s Grand Jury Rehearsal
The second disputed ruling involves Kitchens' attempt
to question M.W. about N.L.'s grand jury testimony. Kitchens
offered two reasons for pursuing this line of inquiry. His
primary objective was to establish that M.W. had wanted to hear
N.L. testify because he did not believe her story; his secondary
objective -- offered as an apparent afterthought when the trial
court rejected Kitchens' primary theory -- was to apprise the
jury that N.L. had rehearsed her story before giving her grand
jury testimony.
a. M.W.'s Opinion of N.L.'s Credibility
With respect to Kitchens' primary objective, the trial
court correctly recognized that Kitchens had no right to prove
M.W.'s disbelief of N.L.'s charges against Kitchens. Kitchens
was not entitled to present M.W.'s lay opinion as to the
credibility of N.L.'s story unless he first established that the
opinion was rationally based on M.W.'s own observations and that
the opinion would have been helpful to the determination of a
fact in issue. See Alaska Rule of Evidence 701.5 In the present
case, M.W. repeatedly acknowledged that his skepticism toward
N.L.'s version of events was not rationally based on his
observations of N.L.'s behavior, but that it arose instead from
his own jealous and possessive nature.
Moreover, we fail to see how M.W.'s opinion of the
credibility of N.L.'s story could have materially assisted the
jury in deciding any disputed fact. The court did not preclude
Kitchens from questioning M.W. about specific observations
indicating a lack of candor on N.L.'s part. Hence, the jury was
fully capable of forming its own opinion as to N.L.'s credibility
and stood in no apparent need of assistance from M.W. M.W.'s
personal opinion as to the truthfulness of the complaint had no
bearing on any issue apart from the issue of N.L.'s general
credibility.
To the extent M.W.'s opinion might have been relevant
for general impeachment of N.L.'s credibility, its admissibility
was governed by Alaska Rule of Evidence 608(a) and (b).6 Under
this rule, Kitchens could properly ask M.W. for his opinion of
N.L.'s general credibility, but Kitchens was not entitled to
elicit M.W.'s opinion as to the credibility of any specific
statement by N.L.
Finally, by the time the trial court precluded Kitchens
from delving farther into M.W.'s opinion of N.L.'s version of
events, the jury had already been given a clear picture of M.W.'s
personal opinion. M.W. had testified at the outset of his direct
examination that he "always doubted [N.L.] in a lot of ways."
And N.L. had specifically testified, on cross-examination by
defense counsel, that M.W. had tried to listen to her grand jury
testimony because he did not believe her and because he wanted to
make sure that she was telling the truth.
b. The Fact of N.L.'s Rehearsal
The trial court's rejection of Kitchens' offer to
question M.W. about N.L.'s "rehearsal" of her grand jury
testimony -- the secondary purpose of Kitchens' proposed inquiry
into the events of April 1993 -- presents a somewhat closer
issue. Contrary to the state's assertion below (which Judge
Johnstone evidently accepted), it does not appear from the record
that Kitchens sought to question M.W. as to any opinion M.W.
might have formed concerning the rehearsal. Rather, it seems
that Kitchens sought merely to establish, through M.W., that a
grand jury rehearsal had occurred: that M.W. had witnessed N.L.
discussing her proposed grand jury testimony with a prosecutor
the day before the grand jury hearing.
To the extent that this evidence might have shown that
N.L. concocted her testimony, it was relevant and arguably
admissible. But it was also wholly cumulative. In his cross-
examination of N.L., Kitchens thoroughly explored N.L.'s
rehearsal of her grand jury testimony. N.L. expressly
acknowledged that the rehearsal had occurred, and she described
the event.7 Given N.L.'s acknowledgement of the fact that she
had rehearsed her grand jury testimony, we find no abuse of
discretion in the trial court's refusal to allow further inquiry
of M.W. on the same point.
3. N.L.'s Return to Alaska
a. Admissibility
The trial court's third disputed ruling dealt with
Kitchens' request to question M.W. about N.L.'s decision to
return to Alaska after Kitchens' indictment. The court's
rejection of Kitchens' request is troubling. Contrary to the
view expressed by the court below and to the state's argument on
appeal, Kitchens' offer of proof did not involve an attempt to
obtain speculative or otherwise impermissible opinion evidence
from M.W.
Kitchens' desire to prove that N.L. displayed no fear
and seemed "totally carefree and unconcerned" when she decided to
return to Alaska in the spring of 1993 would not have required
M.W. to express any opinion beyond his opinion of N.L.'s state of
mind. This opinion, in turn, would have been based on M.W.'s
personal observation of N.L.'s demeanor and on statements by N.L.
revealing her own state of mind. Evaluation of personal demeanor
is an inherent part of ordinary social interaction and, in most
situations, entails little more than commonsense judgment.
Hence, if demeanor is relevant, there is ordinarily nothing
impermissible in asking a witness to describe the demeanor of a
person with whom the witness has spoken. The trial court erred
in concluding that the proposed inquiry called for speculative
opinion evidence. Assuming N.L.'s state of mind was relevant,
M.W.'s proposed testimony was a proper vehicle for its proof.
The state does not contend that N.L.'s lack of fear was
irrelevant; nor does it appear that such an argument could be
sustained. N.L. claimed that her assailant had threatened to
kill her. Kitchens offered to show that, against M.W.'s wishes
and despite her knowledge that Kitchens had been released on bail
after being charged with her assault, N.L. readily accepted a job
that required her to return to Anchorage. According to the
proposed testimony, in deciding to take the job, N.L. had shown
no signs of concern or fear.
Evidence of N.L.'s carefree attitude was at least
marginally relevant to Kitchens' consent defense and tended to
undermine N.L.'s credibility, since N.L.'s apparent lack of fear
might indicate that in actuality she had no reason to fear
Kitchens -- that Kitchens had never threatened her. Because we
find nothing in the record to support the conclusion that this
evidence had any potential for prejudice that might have
outweighed its probative value, we conclude that the trial court
erred in excluding it.
b. Harmless Error
We must separately consider whether the error was
sufficiently prejudicial to require reversal. Given the
significance and constitutional dimension of the accused's right
to present favorable evidence, we assume that the constitutional
standard of review applies in Kitchens' case, and we inquire
whether the error was harmless beyond a reasonable doubt. Love
v. State, 457 P.2d 622 (Alaska 1969); but see Shepard v. State,
847 P.2d at 84 (applying nonconstitutional standard in an
analogous situation in holding that error required reversal).
Kitchens correctly argues that N.L.'s credibility was a
crucial issue at trial. Nevertheless, the excluded evidence --
while unquestionably relevant to some degree -- was not
particularly forceful: it dealt with N.L.'s state of mind at a
time well-removed from the date of the alleged assault, and its
probative value depended on a relatively attenuated series of
inferences. Kitchens had at his disposal many other, more
compelling grounds for impeachment, including N.L.'s failure to
report the incident for more than two weeks, her apparent lack of
fear or distress in the immediate aftermath of the assault, her
numerous inconsistent statements, and her initial
misidentification of Zane Vaughn as her assailant. Kitchens'
trial counsel ably availed himself of these alternative grounds
for impeachment.
In the final analysis, it seems clear that Kitchens'
lack of success in attempting to challenge N.L.'s credibility
stemmed not from any dearth of material to work with, but rather
from the strength of the prosecution's case. Even apart from
N.L.'s testimony, the evidence against Kitchens was extremely
strong: it included the tape-recorded telephone conversation in
which he admitted that he had forced N.L. to have sex with him.
This admission was followed by a police interview in which
Kitchens, unaware of the recording, adamantly denied any contact
with N.L. at all. Only after learning of the recording did
Kitchens claim consent.
By far the most significant factor bearing on the issue
of harmless error in Kitchens' case, however, is that Kitchens
was allowed to cross-examine N.L. on virtually the same issue
that the court barred him from covering with M.W. And N.L.'s
responses to Kitchens' questions did not differ materially from
the proposed testimony that was improperly excluded. N.L.
candidly acknowledged that she decided to return to Alaska
against M.W.'s advice and with full knowledge that Kitchens had
been released on bail.8 Given N.L.'s testimony on cross-
examination, M.W.'s testimony would have added nothing of
material value to the evidence already before the jury. In
short, our review of the record convinces us that the error was
harmless beyond a reasonable doubt.
SENTENCING
Kitchens separately contends that his sentence is
excessive. A first felony offender, Kitchens was convicted of
five felonies in the present case: two counts of first-degree
sexual assault, one count of second-degree sexual assault, one
count of first-degree burglary, and one count of second-degree
robbery. The two counts of first-degree sexual assault are
unclassified felonies carrying a maximum term of thirty years'
imprisonment. Kitchens was subject to a presumptive term of
eight years for each count; the superior court found no
aggravating or mitigating factors applicable to these offenses.
The remaining offenses are class B felonies, for which the
maximum term is ten years; no presumptive term applied to these
offenses. For the two counts of first-degree sexual assault,
Judge Johnstone sentenced Kitchens to consecutive terms of eight
years and eight years with four years suspended. The judge
imposed lesser, concurrent sentences for the remaining offenses.
Kitchens' composite sentence is thus sixteen years with four
years suspended.
This composite term falls well within the sentencing
range of ten to fifteen years that has been established as a
benchmark for first felony offenders convicted in aggravated
cases of first-degree sexual assault or abuse. See, e.g.,
DeGross v. State, 768 P.2d 134, 139 (Alaska App. 1989). Given
that Kitchens' case involved two separate acts of first-degree
sexual assault and three subsidiary class B felonies, his case
readily qualifies as an aggravated one.9
We nevertheless find it necessary to remand for
reconsideration of Kitchens' sentence. In addressing his
decision to impose consecutive sentences in Kitchens' case, Judge
Johnstone commented: "Legislation recognizes that when dealing
with multiple sexual assault cases, consecutive sentences must be
imposed." The sentencing court's belief that consecutive
sentences were mandatory is incorrect; in the circumstances of
Kitchens' case, Judge Johnstone was authorized to impose
Kitchens' sentences consecutively or concurrently.10 Given the
court's apparent belief that consecutive sentences were
mandatory, we must remand Kitchens' case for resentencing under
the correct legal standard.11
We AFFIRM Kitchens' convictions and REMAND his case for
resentencing as directed.
_______________________________
1. Kitchens also claimed that the incident occurred the
night before N.L.'s departure to Texas, not the night of her
departure, and he presented an alibi witness in an attempt to
establish that the incident could not have occurred on the night
of September 17/18, as reported by N.L. The testimony of the
alibi witness was inconclusive, however. In any event, the
actual date of the incident proved to be of little significance
in light of Kitchens' claim of consent.
2. As examples of such cases, Kitchens cites State v.
Alexander, 401 S.E.2d 146, 148 (S.C. 1991), State v. Shaw, 542
A.2d 1106, 1107 (Vt. 1987), and Padilla v. People, 397 P.2d 741,
743 (Colo. 1964).
3. Kitchens cites Larson v. State, 725 P.2d 1214 (Nev.
1986)(describing as arguably relevant to a consent defense a
photograph of the complaining witness smiling shortly after the
alleged assault). Kitchens also cites State v. McCarthy, 446
A.2d 1034 (R.I. 1982)(finding error in exclusion of evidence that
the complainant filed and withdrew charges against another man
shortly after the alleged sexual assault), but McCarthy did not
involve demeanor evidence.
4. Moreover, the point was hardly disputed. In her own
testimony, N.L. had readily acknowledged that she told no one
about the incident until after she and M.W. returned from Texas.
Specifically, N.L. indicated on cross-examination that, when she
arrived in Texas, she tried to act as if nothing had happened.
She also stated that she gave M.W. no inkling that something had
happened to her.
5. A.R.E. 701 provides:
If the witness is not testifying as
an expert, his testimony in the form of
opinions or inferences is limited to those
opinions or inferences which are (a)
rationally based on the perception of the
witness and (b) helpful to a clear
understanding of his testimony or the
determination of a fact in issue.
6. Alaska Rule of Evidence 608(a) and (b) provides:
(a) Opinion and Reputation
Evidence of Character. The credibility of a
witness may be attacked or supported by
evidence in the form of opinion or
reputation, but subject to these limitations:
(1) the evidence may refer only to character
for truthfulness or untruthfulness; and (2)
evidence of truthful character is admissible
only after the character of the witness for
truthfulness has been attacked by opinion or
reputation evidence or otherwise.
(b) Specific Instances of Conduct.
If a witness testifies concerning the
character for truthfulness or untruthfulness
of a previous witness, the specific instances
of conduct probative of the truthfulness or
untruthful-ness of the previous witness, may
be inquired into on cross-examination.
Evidence of other specific instances of the
conduct of a witness offered for the purpose
of attacking or supporting that witness'
credibility is inadmissible unless such
evidence is explicitly made admissible by
these rules, by other rules promulgated by
the Alaska Supreme Court or by enactment of
the Alaska Legislature.
7. The relevant portion of N.L.'s testimony concerning the
rehearsal is as follows:
Q The day before you testified at the grand
jury, you had a call from the district attorney,
right?
A Yes.
Q You spoke with her and I believe her name was
Suzanne Lombardi or was it Diane O'Gorman?
A Diane O'Gorman.
Q Okay. And you had sort of a rehearsal.
A Yes.
Q A rehearsal of what she was going to ask you?
That's a question.
A Yes.
Q And a rehearsal as to what you would answer.
A As to what was the truth.
Q As to what you would answer.
A Yes.
Q Okay. And at that point, you had set up for
the following date a telephonic conference for you
to participate at the grand jury.
A Yes.
Q And that had been a prob -- there was a
dispute between you and [M.W.] as to where the
call was being set up.
A That's correct.
Q Because apparently you had set it up at some
friends of his parents house.
A Correct.
Q And he did not want that.
A That's right.
Q In fact, he wanted to sit in and listen to
your testimony at the grand jury.
A That's correct.
Q Because he did not believe you.
A At that point, I don't know.
8. The relevant portion of N.L.'s cross-examination is as
follows:
Q Okay. [M.W.], however, was scared for you to
be back up in Alaska, right?
A Yes.
Q And -- but sometime after the grand jury, you
decided to come up anyway.
A Yes.
Q And that was against his wishes.
A Yes.
Q And you were no longer scared.
A That's not true.
Q Well, you no longer had [M.W.] to protect
you, right?
A I was no longer with [M.W.].
Q That's right. And he had cautioned you about
taking a job up at the slope because you would be
in Anchorage two weeks -- you would be up at the
slope two weeks, two weeks in Anchorage, right?
A Two weeks in Alaska.
Q Two weeks in Alaska and [M.W.] was scared
that the person who had been indicted who was not
[sic] on the streets might come after you, right?
A Yes.
Q But you were not scared and you took the job
anyway.
A I can't say I wasn't scared, but, yes, I did
take the job anyways.
9. Prior to sentencing, the state proposed, as an
aggravating factor, that Kitchens' conduct was among the most
serious included in the definition of first-degree sexual
assault. See AS 12.55.155(c)(10). Judge Johnstone rejected this
proposed factor, finding that Kitchens' conduct was no more
serious than conduct typically involved in first-degree sexual
assault cases. We do not construe Judge Johnstone's rejection of
the state's proposed aggravating factor to be incompatible with
the conclusion that Kitchens' case is an aggravated one for
purposes of the applicable sentencing benchmark. Aggravating
factors such as that proposed by the state and rejected by Judge
Johnstone apply to individual offenses on a count-by-count basis.
In contrast, the benchmark sentencing range discussed in DeGross
applies to the totality of an offender's conduct in a given case.
We find nothing inconsistent in concluding, on the one hand, that
Kitchens' individual acts of first-degree sexual assault were not
among the most serious included in the definition of the offense,
while finding, on the other, that the totality of his conduct in
this case is sufficiently serious to qualify the case, on the
whole, as an aggravated case of first-degree sexual assault.
10. See AS 12.55.025(e) & (g); State v. Andrews, 707 P.2d
900, 908-09 (Alaska App. 1985), aff'd 723 P.2d 85 (Alaska 1986).
Perhaps the sentencing court had in mind AS 12.55.025(h), under
which consecutive sentencing is mandatory in the event of
multiple convictions for assaultive crimes in which the victim or
victims are minors. N.L. was not a minor.
11. We recognize that, in imposing sentence, Judge
Johnstone emphasized that the individual sentences he imposed
were of secondary importance and that his overriding intent was
to impose a composite term of sixteen years with four years
suspended. Nevertheless, it is unclear whether or to what extent
Judge Johnstone's choice of an appropriate composite term was
colored by his belief that consecutive sentences were mandatory
for the first-degree sexual assault convictions.
