NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to permanent
publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DANIEL STEVEN NATKONG, )
) Court of Appeals No. A-5622
Appellant, ) Trial Court No. 1PE-94-043 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1485 - October 11, 1996]
______________________________)
Appeal from the Superior Court, First Judicial
District, Petersburg, Thomas M. Jahnke and
Walter L. Carpeneti, Judges.
Appearances: Michael O'Brien, Juneau, for
Appellant. Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special Prosecu-
tions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appel-
lee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Daniel Steven Natkong appeals his convictions for first-
degree sexual abuse of a minor, AS 11.41.434(a)(1). We affirm.
In April 1994, Natkong was indicted for sexually abusing
his daughter, D.N., during the period of March 1992 through January
1994. D.N. was between five and seven years old during this time.
The State's case at grand jury was founded on the testimony of three
witnesses.
D.N.'s mother, Ernestine Natkong, testified that she and
Natkong separated in early February 1994. A short time later, Mrs.
Natkong informed D.N. that Natkong was going to move back into the
home. Upon hearing this news, D.N. "freaked". D.N. told her mother
that "if [she] didn't divorce [Natkong], that she would never
forgive [her]." D.N. then revealed that she had been sexually
abused by Natkong:
MRS. NATKONG: [D.N.] told me that when I
would go out to drink, that her dad would ...
drink his whiskey, and about 3:00, 4:00 or 5:00
in the morning, he would go in my bedroom when
my three kids were sleeping, but [D.N.] would
never sleep because she knew that he was going
to come in there. And he would go in there and
he would take her either by her hand, or one
time he drug her from my bedroom to his bed-
room, because we slept in separate bedrooms for
two years. He has moved into his own room.
And she said he tied her -- tied her hands,
both her hands with a handkerchief, and tied
her mouth with a handkerchief, and he would
start off on the front and he would finish in
the back.
PROSECUTOR: Okay. By "front", you mean
her vagina?
MRS. NATKONG: Yes.
PROSECUTOR: And [by] "back", you mean her
anus?
MRS. NATKONG: Yes.
Mrs. Natkong also testified that D.N. had been experiencing problems
with her bowels (soiling her pants). She told the grand jury that
D.N.'s bowel problems began when D.N. was five years old, apparently
around the same time that the sexual abuse began. Mrs. Natkong also
testified that she had found Natkong lying in bed with D.N. several
times. Whenever she approached Natkong to talk about this, "he
would get really upset" and would tell her that she had "a sick
mind".
Debra Downs, a state social worker, interviewed D.N. after
receiving the report that D.N. had been sexually abused. Downs went
to D.N.'s home accompanied by Kake Police Chief Frank Hughes. D.N.
told Downs that her father would sexually abuse her on the nights
when her mother went out to get drunk. According to D.N., the abuse
had taken place in every room of the house except her mother's room.
Natkong would put his fingers and his penis in D.N.'s vagina and
anus. D.N. also told Downs that her father would tie a handkerchief
across her mouth to muffle her screams.
Dr. Diane Liljegren, a physician, examined D.N. after the
report of sexual abuse was received. When Dr. Liljegren asked
D.N.'s mother to leave the examination room (her standard procedure
in such cases), D.N. became "panic stricken"; the only way to keep
D.N. calm enough to allow the exam to go forward was to allow Mrs.
Natkong to remain in the room. Liljegren testified that D.N. was
distraught and crying during the examination of her perineal area.
There was no visible trauma to D.N.'s vaginal area, but it looked
to Liljegren that D.N.'s hymen was not intact.
When Dr. Liljegren was checking D.N.'s hymen, D.N. reacted
dramatically to the intrusion of the Q-tip. According to Dr.
Liljegren,
I used a Q-Tip to try to ... separate the
tissues and see what was going on, and I
touched her with the Q-Tip and -- let me get
the exact words -- and she just screamed out,
"That's what it felt like when Daddy touched me
down there."
Liljegren also found scarring inside D.N.'s anus, which she said was
"pathognomonic of something being inserted into [the] anus."
At the end of the examination, Liljegren reminded D.N. of
what she had said about her father's touching her. Liljegren then
asked D.N., "Did Daddy ever touch you any farther inside than that?"
D.N. responded that she did not know. Liljegren then reminded D.N.
of the anal examination, during which Liljegren had not inserted
anything into D.N.'s body. She asked D.N. "if Daddy touched her
where I did, or farther inside?" According to Liljegren, D.N.
indicated "with an emphatic nod that it was farther inside that her
daddy had touched her." Liljegren also testified that D.N.'s
reported bowel problems were "very consistent with sexual abuse",
especially sodomy.
The State did not call D.N. to testify at grand jury. The
prosecutor explained to the grand jury that D.N.'s prior statements
about the abuse would be presented under the authority of Alaska
Criminal Rule 6(r)(2). Rule 6(r)(2) declares that, in a prosecution
for sexual assault or sexual abuse of a minor,
hearsay evidence of a statement related to the
offense ... made by a child who is the victim
of the offense may be admitted [at] grand jury
if
(i) the circumstances of the statement
indicate its reliability;
(ii) the child is under 10 years of age
when the hearsay evidence is [introduced];
(iii) additional evidence is introduced
to corroborate the statement; and
(iv) the child testifies at the grand
jury proceeding or the child will be available
to testify at trial.
Based on the foregoing evidence, the grand jury indicted
Natkong. However, when D.N. took the stand at Natkong's trial, she
claimed that she did not remember being sexually abused by her
father.
At the beginning of direct examination, D.N. answered some
two dozen background questions about her age, her family, her
hometown, and how she had traveled to Petersburg to attend the
trial. But when the prosecutor asked D.N. if she knew her father's
first name, she first refused to answer, and then she responded
"No." The prosecutor asked D.N. more questions about her father;
D.N. would not respond to these questions except to say, "I don't
know" or variations of this answer. The prosecutor then asked the
trial judge's permission to confront D.N. with the prior statements
she had made about the sexual abuse. This request was granted.
The prosecutor first asked D.N. about statements she had
made to Debra Downs, the social worker:
PROSECUTOR: Do you remember Debbie? Do
you remember talking to Debbie? Do you remem
ber a lady named Debbie?
D.N.: Yes.
PROSECUTOR: And do you remember talking
to her when you were with Frank [Hughes], with
-- Frank, he was there, right? Do you remember
that? If you don't remember, you can tell me.
You don't remember if Frank was there?
D.N.: No.
PROSECUTOR: You don't remember. Okay.
When you talked to Debbie, do you remember
talking to her about your dad touching you? Do
you remember that? Do you understand the
question? All I want is a "yes" or "no". Do
you remember talking to her about that?
D.N.: No.
D.N. went on to declare that she did not remember any drawings she
and Downs had made, nor did she remember ever telling Downs that
Natkong had touched her "private parts". When asked whether she
remembered her father ever touching her private parts, D.N.
responded "No." When the prosecutor showed D.N. the drawings Downs
had made during their interview, D.N. indicated she did not remember
ever seeing the drawings before nor did she remember Downs drawing
them.
As the examination continued, the prosecutor asked D.N.
directly whether her father "ever touched [her] in a way that [she]
didn't want him to?" When D.N. did not immediately respond, the
prosecutor asked if she understood the question; D.N. answered
"Yes." When D.N. still did not respond to the question, the
prosecutor repeated it, and then asked, "Do you understand that
question?", to which D.N. replied, "I'm trying to remember." D.N.
never answered the question.
The prosecutor moved on, asking D.N. if she knew who Ann
Jackson was. (EN1) D.N. responded "Yes" þ that she knew that
Jackson lived in Kake. When asked if she remembered talking to
Jackson about "your dad touching you", D.N. responded "No",
repeating the answer when the prosecutor repeated the question.
When the prosecutor asked D.N. if she remembered talking to a doctor
in Sitka or seeing a doctor in Ketchikan (i.e., Dr. Liljegren), D.N.
responded "No" to both questions.
Natkong's attorney then cross-examined D.N.. The defense
attorney began by asking D.N. basic questions about her trip from
Kake to Petersburg; D.N. responded to these questions with short
answers, usually "Yes" or "No". The defense attorney then asked
D.N. where she lived in Kake, who lived with her, and whether she
lived in a house or apartment. D.N. was responsive to all of these
questions. The defense attorney then asked D.N. whether she
remembered talking to Ann Jackson before coming to Petersburg; D.N.
replied that she did not remember. The questioning then shifted to
whether "some people talk[ed] to you about coming here?", to which
D.N. responded "Yes". When the defense attorney asked if Mr. Herren
(the prosecutor) had talked to D.N. about coming, she responded "I
don't remember". When asked if she remembered her mom talking to
her about coming, D.N. responded "Yes". When posed the same
question about "Mr. Hughes" (Kake Police Chief Frank Hughes), D.N.
indicated she could not remember. When asked if "Janice" (a
paralegal with the district attorney's office) had talked to her,
D.N. answered "Yes", but, in follow-up questions, D.N. claimed not
to know where Janice worked, or if Janice worked with Mr. Herren.
The defense attorney then completely switched gears. She
asked D.N. if she liked watching movies, and what her favorite movie
was. D.N. was responsive to these questions. (EN2) The defense
attorney then asked D.N., "Are there any scary movies that you've
seen?" D.N. responded "Yes". The attorney pursued this line of
questioning, asking D.N. to describe a scary movie she had seen
"about aliens that took someone into space". D.N. was responsive
to this line of questioning. When the defense attorney asked D.N.
whether the events in the movie which D.N. described (aliens taking
someone into space) were "true", D.N. responded, "It said that it
was true." When the defense attorney asked, "Who said it was
true?", D.N. responded, "The movie did." D.N. then indicated she
did not think it was true. The defense attorney asked a few more
questions about the movie and whether D.N. sometimes watched scary
movies at home; D.N. responded to all these questions. At this
point, the defense attorney abruptly ended the cross-examination.
Following the cross-examination of D.N., the prosecutor
announced that he intended to introduce D.N.'s prior statements to
her mother, to Debra Downs, to Ann Jackson, and to Dr. Liljegren.
For admission of this hearsay, the prosecutor relied on Alaska
Evidence Rule 801(d)(1)(A), which declares that, despite the normal
rule against hearsay, a witness's prior inconsistent statements are
admissible for the truth of the matters asserted in those statements.
(EN3)
Natkong's attorney opposed the introduction of this
evidence. The defense attorney pointed out that Evidence Rule
801(d)(1)(A) allows the introduction of a person's out-of-court
statements only if "[t]he declarant testifies at the trial or
hearing". The defense attorney argued that, because of D.N.'s
repeated refusals to answer and her repeated answers of "I don't
remember" and "I don't know", D.N. had not meaningfully appeared as
a witness, and thus her prior statements could not be introduced
under Evidence Rule 801(d)(1)(A).
The defense attorney also argued that, because D.N. was
not available as a witness, her statements to her mother, to Debra
Downs, and to Dr. Liljegren should not have been introduced at grand
jury. Natkong's attorney pointed out that Criminal Rule 6(r)(2)(iv)
allows introduction of a child-victim's hearsay only if "the child
testifies at the grand jury proceeding or the child will be
available to testify at trial". D.N. had not testified at grand
jury, and Natkong's attorney argued that her problematic testimony
at trial did not qualify her as an "available" witness.
Superior Court Judge Walter L. Carpeneti ruled that D.N.
had been available for cross-examination and thus D.N.'s prior
statements were admissible as inconsistent statements under Evidence
Rule 801(d)(1)(A). The judge viewed D.N.'s answers as the equi-
valent of her asserting that "none of this ever happened", and thus
her prior statements (that she had been sexually abused by her
father) were inconsistent with her trial testimony. Judge Carpeneti
further found that Natkong's failure to press D.N. on cross-
examination had been tactical þ that the defense attorney had chosen
to question D.N. solely upon innocuous subjects rather than risk an
unfavorable answer to a direct question about whether the sexual
abuse had occurred.
Regarding Natkong's alternative argument that the
indictment should be dismissed because D.N. was not available as a
trial witness for purposes of Criminal Rule 6(r)(2)(iv), Judge
Carpeneti told the parties that "if a motion to dismiss is going to
be revisited, it ought to be revisited after trial". Natkong's
attorney responded, "[I]f the court decides to allow the [hearsay]
statements in, I would make that motion to dismiss and follow the
court's order in terms of renewing that [motion] after trial."
On appeal, Natkong argues that Judge Carpeneti implicitly
denied his Rule 6(r)(2) motion; he asks this court to reverse Judge
Carpeneti's ruling and throw out the indictment. However, as the
transcript makes plain, Judge Carpeneti did not rule on Natkong's
motion. Instead, the judge directed Natkong to renew the motion
after trial if he wished to pursue the issue. Because Natkong has
provided us with such an abbreviated transcript of his trial, we
have no record of whether Natkong renewed his motion at the close
of trial as Judge Carpeneti requested. Likewise, we have no record
of any ruling by Judge Carpeneti on Natkong's motion (assuming that
Natkong did renew it).
It is the appellant's burden to demonstrate that an
asserted point of error was preserved in the trial court and that
the trial judge did in fact rule adversely to the appellant. The
record that Natkong has designated does not demonstrate these
essential elements of his appellate claim. For these reasons, we
find that Natkong's Rule 6(r)(2) claim is waived. See former
Appellate Rule 210(d); Ketchikan Retail Liquor Dealers Ass'n v.
State, Alchoholic Beverage Control Bd., 602 P.2d 434, 438-39 (Alaska
1979) (a party's failure to designate a record to support the
party's claims justifies a reviewing court in deciding those claims
against the party); Whittier v. Whittier Fuel & Marine Corp., 577
P.2d 216, 223 n.26 (Alaska 1978) (a reviewing court will not
consider trial exhibits if the exhibits are not part of the
designated record on appeal). Cf. McBride v. State, 368 P.2d 925,
927 n.11 (Alaska 1962) (when the appellant omits portions of the
record adverse to his claims, a reviewing court retains the
discretion to examine and rely upon those omitted portions of the
trial court proceedings so as to avoid rewarding the appellant for
failing to comply with the obligation to include "all matters ...
essential to a decision of the questions presented by the appeal").
We turn now to the issue of whether D.N.'s prior
statements were admissible under Evidence Rule 801(d)(1)(A). Rule
801(d)(1)(A) provides that a hearsay statement is admissible for the
truth of the matter asserted if "[t]he declarant testifies at the
trial ... and the statement is inconsistent with the declarant's
testimony." The underlying question here is whether D.N. meaning
fully "testified" for purposes of Rule 801(d)(1)(A) when she was
examined at Natkong's trial. (EN4)
Natkong agrees with Judge Carpeneti's conclusion that
D.N.'s ostensible lack of memory was, in truth, a refusal to answer
questions. Natkong claims than D.N.'s refusal to answer questions
deprived him of the ability to cross-examine her. For this reason,
Natkong argues, D.N. did not really "testify" at his trial, and
therefore her prior statements concerning the sexual abuse should
not have been admitted.
This court faced a similar issue in Van Hatten v. State,
666 P.2d 1047 (Alaska App. 1983). The defendant in Van Hatten was
accused of sexually abusing his stepdaughter. The stepdaughter had
detailed the sexual abuse in her grand jury testimony, but her trial
testimony was quite different. The stepdaughter "answered
preliminary questions without reluctance[,] but when questioning
turned to the specific occurrences [at issue], she maintained that
she was unable to recall most details." Id. at 1049. Over defense
objection, the prosecutor then introduced the stepdaughter's grand
jury testimony, as well as statements she had given to a police
investigator, as inconsistent statements under Evidence Rule
801(d)(1)(A). Id.
Van Hatten argued that his stepdaughter's "lapses of
memory" at trial "were not inconsistent with her prior [statements],
since they effectively constituted a refusal to answer and did not
amount to testimony." Van Hatten also argued that that his step-
daughter's "unwillingness or inability to recall the details of the
alleged assault rendered her functionally unavailable for cross-
examination". Id.
This court, after reviewing state and federal precedents,
concluded:
[When] a witness deliberately seeks to avoid
testifying by claiming loss of memory in
response to specific questions, prior state-
ments of the witness relating to the subject
matter of the question are ["]inconsistent["]
within the meaning of Evidence Rules 613 and
801(d)(1)(A).
Van Hatten, 666 P.2d at 1051. Since the time Van Hatten was
decided, federal precedent even more strongly supports this view.
See United States v. Bigham, 812 F.2d 943, 946 (5th Cir. 1987);
United States v. Williams, 737 F.2d 594, 608 (7th Cir. 1984), cert.
denied, 470 U.S. 1003 (1985); United States v. Baker, 722 F.2d 343,
348-49 (7th Cir. 1983), cert. denied, 465 U.S. 1037 (1984); United
States v. Russell, 712 F.2d 1256, 1258 (8th Cir. 1983); United
States v. Thompson, 708 F.2d 1294, 1303 (8th Cir. 1983). See also
Jack B. Weinstein and Margaret A. Berger, Weinstein's Evidence
(1990), para. 801(d)(1)(A)[04], pp. 801-156 to 801-157. (EN5)
For these reasons, we agree with Judge Carpeneti that
D.N.'s prior statements describing the sexual abuse were admissible
under Evidence Rule 801(d)(1)(A).
On a related matter, we conclude that the record supports
Judge Carpeneti's finding that Natkong's relatively short cross-
examination of D.N. was the result, not of D.N.'s unwillingness to
answer questions, but of the defense attorney's tactical choice not
to ask D.N. any question dealing with the substance of the charges.
See Bodine v. State, 737 P.2d 1072, 1075 (Alaska App. 1987).
On direct examination, D.N. asserted that she did not
recall being sexually abused. This assertion was facially
implausible, given D.N.'s earlier descriptions of the abuse to her
mother and to Debra Downs, and D.N.'s statements about the abuse to
Dr. Liljegren. At the same time, D.N. readily answered the
prosecutor's background questions, as well as the questions on other
subjects put to her by Natkong's attorney during cross-examination.
Under these circumstances, Judge Carpeneti could reasonably conclude
that Natkong's attorney chose not to confront D.N. with a direct
question about the sexual abuse.
As an alternative ground for our disposition of this
issue, we note that even if D.N. was not available for cross-
examination (so that her prior statements were not admissible under
Evidence Rule 801(d)), there would still be colorable arguments that
some of D.N.'s prior statements were admissible under Alaska Evi-
dence Rule 804(b)(5). See Matter of T.P., 838 P.2d 1236 (Alaska
1992). Moreover, some or all of the statements that D.N. made to
medical care providers may have been admissible under Evidence Rule
803(4). Natkong's designation of record does not include the
testimony of any trial witness except D.N.. That is, this court
does not have the transcript of any of the hearsay testimony that
Natkong now claims was introduced in violation of the rules of
evidence. We do not know what hearsay statements were introduced,
nor can we determine whether independent grounds exist for the
introduction of some or all of this evidence.
It is an appellant's responsibility to present this court
with a record sufficient to allow meaningful review of his or her
claims. If we had not been able to resolve Natkong's claims on
strictly legal grounds, we would have found them waived. See former
Appellate Rule 210(d); Ketchikan Retail Liquor Dealers Ass'n, 602
P.2d at 438-39; Whittier Fuel & Marine Corp., 577 P.2d at 223 n.26.
The judgement of the superior court is AFFIRMED.
ENDNOTES:
1. Ann Jackson is referred to here, and also several times during
the parties' argument over the admissibility of D.N.'s hearsay
statements, but she is never mentioned in either party's brief on
appeal. At one point in the trial proceedings, the prosecutor
indicated that he intended to call Jackson as a witness. But
because Natkong asked for transcription of only a small portion of
the trial (basically, D.N.'s testimony and Judge Carpeneti's
ensuing ruling on the admissibility of D.N.'s prior statements), we
are unable to ascertain if Jackson testified at Natkong's trial.
2. D.N. indicated that she does like to watch movies and that her
favorite movie is "Beethoven II".
3. Even before the Alaska Supreme Court's adoption of the current
Rules of Evidence, Alaska law allowed a witness's prior
inconsistent statements to be used as substantive evidence. See
Beavers v. State, 492 P.2d 88, 94 (Alaska 1971).
4. Conceptually, two questions must be answered to determine the
admissibility of this evidence: (1) were D.N.'s prior statements
admissible under the Rules of Evidence despite their hearsay
nature? and (2) would admission of D.N.'s prior statements violate
Natkong's constitutional right to confront the witnesses against
him? However, in Natkong's case it appears that the answer to the
first question (whether D.N.'s statements were admissible under
Evidence Rule 801(d)(1)(A)) supplies the answer to the second
question. The Alaska Supreme Court has ruled that admission of a
witness's prior inconsistent statements does not abridge a party's
right of cross-examination, Beavers, 492 P.2d at 93, and the
supreme court has also ruled that if a witness is available for
cross-examination, then introduction of the witness's prior
inconsistent statements does not offend Alaska's confrontation
clause. Lemon v. State, 514 P.2d 1151, 1153-54 (Alaska 1973).
5. We also note the Supreme Court's decision of a related issue
in United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d
951 (1988). In Owens, the issue was the admissibility of an
assault victim's prior statement identifying the defendant as the
perpetrator of the assault; at trial, because of brain injuries,
the victim genuinely could not remember the identity of his
attacker. The trial judge ruled that the victim's prior
identification was admissible under Federal Evidence Rule
801(d)(1)(C), which allows introduction of a witness's prior
statement identifying the perpetrator of a crime if the witness is
"subject to cross-examination concerning the statement". The
defendant argued on appeal that the victim had not been "subject to
cross-examination" because the victim no longer remembered the
basis for the earlier identification.
The Supreme Court held that, because the assault victim had
testified at trial (even though concededly he did not remember the
assault), the prerequisites of Evidence Rule 801(d)(1)(C) had been
met þ that is, the assault victim had been "subject to cross-
examination". Despite the difficulty of cross-examining a witness
who can not remember the incident being litigated, the Court
adopted the view urged by Justice Harlan's concurrence in
California v. Green, 399 U.S. 149, 188; 90 S.Ct. 1930, 1951; 26
L.Ed.2d 489 (1970), that the Confrontation Clause "guarantees only
an opportunity for effective cross-examination, not cross-
examination that is effective in whatever way". Owens, 484 U.S. at
559, 108 S.Ct. at 842 (citations omitted).
Justice Brennan, dissenting in Owens, concluded that the
witness's prior statements should not have been admitted when the
witness had true memory loss. However, he was careful to
distinguish cases where
witnesses asserting a memory loss ... do so
under circumstances that suggest bias or
ulterior motive; in [such cases], ... the
witness' partial memory or self-interest in
claiming a complete memory loss will afford
the factfinder an adequate basis upon which to
evaluate the trustworthiness of [a witness's]
out-of-court statement.
Owens, 484 U.S. at 570-71, 108 S.Ct. at 848 (Brennan, J.,
dissenting).
