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Napoka v. State (2/18/00) ap-1662
Napoka v. State (2/18/00) ap-1662
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CARL J. NAPOKA, )
) Court of Appeals No. A-6790
Appellant, ) Trial Court No. 4BE-96-479 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1662 February 18, 2000]
)
Appeal from the Superior Court, Fourth Judicial
District, Bethel, Dale O. Curda, Judge.
Appearances: Margi A. Mock, Assistant Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Appellant. John A. Scukanec, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
This case presents an issue under Alaska's rape shield
law, AS 12.45.045. Carl J. Napoka was accused of sexually
assaulting a teenage girl. At his trial, Napoka tried to introduce
evidence that he and the purported victim had repeatedly engaged in
consensual sex in the past. The superior court ruled that this
evidence was barred by the rape shield law. Having examined
Napoka's offer of proof, we conclude that the offered evidence was
admissible and that the superior court's ruling denied Napoka a fair
trial.
An overview of Alaska's rape shield law, AS 12.45.045
AS 12.45.045 declares that, in prosecutions for sexual
assault, "evidence of the [victim's] previous sexual conduct may not
be admitted[,] nor may reference be made to it in the presence of
the jury", except by order of the trial judge. [Fn. 1] If a
defendant wishes to introduce this type of evidence, the defendant
must first apply to the trial judge. [Fn. 2] The statute directs
the trial judge to hear this matter in camera. [Fn. 3] If the judge
concludes "that evidence [of] the [victim's] sexual conduct is
relevant, and that the probative value of [this] evidence ... is not
outweighed by the probability that its admission will create undue
prejudice, confusion of the issues, or unwarranted invasion of the
privacy of the complaining witness", then the judge shall issue an
order "stating what evidence may be introduced and the nature of the
questions that may be permitted." [Fn. 4] The statute adds that
"[i]n the absence of a persuasive showing to the contrary, evidence
of the [victim's] sexual conduct occurring more than one year before
the date of the offense charged is presumed to be inadmissible ...
." [Fn. 5]
The basic facts of this case
On February 9, 1996, Alaska State Trooper Gary J. LaMotte
spoke to the students at Tuluksak High School concerning sexual
assault and sexual abuse. Shortly after he finished his
presentation, a teacher contacted him and told him that a student
wanted to report that she had been sexually abused. LaMotte had a
short conversation with the student, fourteen-year-old N.A., but he
had to leave to catch his plane. LaMotte returned to Tuluksak one
month later to follow up on N.A.'s report. N.A. told Trooper
LaMotte that Napoka had sexually assaulted her nine or ten times,
and that the three most recent assaults had occurred approximately
two years before, in the summer and fall of 1994.
LaMotte decided to focus his investigation on these three
most recent assaults. He interviewed Napoka and asked him about
N.A.'s allegations. Napoka ultimately told LaMotte that he had
engaged in non-consensual sex with N.A. on the three occasions in
mid-1994. He was subsequently indicted on three counts of first-
degree sexual assault. [Fn. 6]
The defendant's offer of proof, the meaning of AS
12.45.045, and the trial judge's erroneous interpretation of this
statute
Just before opening statements at Napoka's trial, the
prosecutor asked Superior Court Judge Dale O. Curda to exclude all
evidence of the other six or seven sexual encounters between Napoka
and N.A.. The prosecutor asserted that this evidence was barred by
the rape shield law, AS 12.45.045.
Responding to the prosecutor's request for this protective
order, Napoka's attorney argued that evidence of the prior sexual
encounters was relevant to two disputed issues: (1) whether N.A.
consented to the three charged incidents of sexual activity, and (2)
if she did not, whether Napoka might have reasonably believed that
N.A. was consenting to the sexual penetration.
Defense Attorney: As to [past] sexual
contact [between] the defendant and the victim,
... I certainly see it as relevant in this
case. The allegation, according to the police
report, is that [N.A.] and Mr. Napoka had sex
some nine or ten times over the years [when]
she was twelve, thirteen, and fourteen years
old. And [one must] say that it [is] relevant
[because], of course, there's going to be a
question of consent in this case. People who
have had sex [with each other] some ten times
interact differently than people who have never
had sex. And in order to show that this is a
situation of consent, I certainly need to give
the whole picture. ... Mr. Napoka is entitled
to a fair trial, and certainly [his] entire
relationship from childhood onward with [N.A.]
is relevant in this case.
. . .
[L]et me [be] clear to the court: [N.A.]
doesn't say that she used to consent and she
quit consenting. [According to] the police
report, what she says is that all nine or ten
times were exactly the same exactly the same
resistance, exactly the same non-consent,
exactly the same [modus operandi], and exactly
the same result: sexual penetration. [But we
contend that] she is a woman who knows when she
wants sex and when she doesn't want sex, and
it's our position that she always wanted sex
with Mr. Napoka.
. . .
[We] contend that [N.A.'s allegation that]
each and every [past] instance [was] forcible
is ... false[.] It is our contention that they
had consensual sex[.] And to give the whole
context [of their relationship] is the only way
to show that [the sexual penetration alleged
here] was not by way of force.
After hearing the defense's offer of proof, the prosecutor
told Judge Curda that evidence of N.A.'s past sexual activity with
Napoka should not be admitted even if it was relevant in the way
that the defense attorney suggested. The prosecutor maintained that
the rape shield law, AS 12.45.045, barred the use of this evidence.
The prosecutor asserted that under the statute, "[a]ny past sexual
contact or conduct other than what [is alleged here] is deemed
inadmissible."
The prosecutor based his position on the fact that
AS 12.45.045(a) apparently draws no distinction between a victim's
past sexual relations with the defendant and the victim's past
sexual relations with other people. The statute simply declares
that "evidence of the [victim's] previous sexual conduct may not be
admitted".
To this extent, the wording of the statute may not
precisely describe its purpose. But that purpose was clarified in
Jager v. State [Fn. 7], where this court discussed the meaning of
AS 12.45.045 and the standard for admission of evidence under that
statute.
In Jager, we rejected the contention that the rape shield
statute excludes evidence of a victim's past sexual conduct even
when that evidence is relevant to the issues being litigated at the
defendant's trial. We clarified that the statute "does not prohibit
the introduction of evidence of the victim's prior sexual conduct
when that evidence is truly relevant." [Fn. 8] The purpose of the
statute, we explained, is to "guard[] against hasty and
ill-considered admission of evidence that is only marginally
relevant or truly irrelevant." [Fn. 9]
The rape shield law prohibits evidence of a victim's
sexual conduct when the "relevance" of this evidence rests on the
impermissible inference that the victim is likely to have freely
engaged in sexual relations with the defendant because the victim
has freely engaged in sexual relations with other people. [Fn.
10] As this court explained in Kvasnikoff v. State:
Until recently, female victims of heterosexual
rape suffered under a rule of relevancy which
reflected the view that a woman who consented
to sex with one individual was more likely to
have consented to sex with another. This rule
was finally rejected [in the rape shield law],
when it was realized that such reasoning was
"more a creature of ... male fantasy ... than
one of logical inference."
674 P.2d 302, 306 (Alaska App. 1983). [Fn. 11]
Given this clarification of the rape shield law, it is
obvious that the statute did not bar evidence of prior sexual
activity between N.A. and Napoka. True, the statute requires the
defendant to seek the court's permission before introducing any
evidence of the victim's prior sexual activity. But this procedural
safeguard is intentionally broad, intended to make sure that all
evidence of the victim's past sexual conduct is screened before it
is presented to the jury. In contrast, the rape shield statute's
rule of exclusion is narrower. Like its cousin, Evidence Rule
404(b)(1), the rape shield statute bars specified evidence when that
evidence is offered for a specific prohibited purpose.
Napoka's attorney tried to explain the flaw in the
prosecutor's interpretation of the statute. The defense attorney
pointed out that, even though the rape shield law may not explicitly
distinguish between the victim's past conduct with the defendant and
the victim's past conduct with other people, the statute is normally
concerned with evidence of the victim's past sexual conduct with
other people. The purpose of the statute, the defense attorney
accurately noted, is to forestall the argument that the victim is
promiscuous and therefore probably consented to have sex with the
defendant.
Defense Attorney: [And] we don't have
[that kind of] situation here[.] [W]e're not
showing [N.A.'s] promiscuity. What we're
showing is the specific relationship between
the two of them [Napoka and N.A.]. And [the]
probativeness [of this evidence], as I talked
about [before], goes to consent[: what she]
communicated to the defendant, and ... all the
incidents of [their] sexual interaction[.] So
I don't see any possibility of the rape shield
law applying [to this] evidence.
. . .
The Court: Okay, so that I'm clear [on
your argument]: What exactly are you offering
the evidence for?
Defense Attorney: To show that, in fact,
[N.A.] has been a consen[ting] and willing
partner in the sexual activity [with Napoka],
both as to the three times [alleged in the
indictment] and the six or seven other times
that she [told] the trooper about. To show
that it was [all] in fact consen[sual], and to
show that Mr. Napoka reasonably believed that
there was consent in this case.
But the defense attorney's argument failed to convince the
prosecutor. The prosecutor told the court:
Prosecutor: That's exactly the reason it
doesn't come in [under the rape shield law.
Prior instances of sexual conduct] don't come
in unless [the evidence] overcomes the
[presumptive] prejudice, the undue invasion of
privacy. ... It's absolutely irrelevant if
she consented [to sexual activity with Napoka]
before ... this time. We'[ve alleged] three
incidents where she said "no", and she'll
testify that she said "no". Whether she
consented before, or after, doesn't make any
difference [as to] what happened at the time
[alleged in the indictment]."
Judge Curda ultimately adopted the prosecutor's position.
In granting the State's request for the protective order, he
declared:
The Court: The primary purpose of the
rape shield statute is to the prevent the use
of evidence [of the victim's] past sexual
conduct as proof of the victim's current
willingness to consent. And that [is] what
[this evidence] is all headed toward. [So]
therefore it is going to be excluded by the
court.
Of course, [Evidence Rule] 404 [also]
deals with character evidence. And [under that
rule] a person's character at one time is not
[admissible], whether it's the [character of
the] defendant or a victim, to show that they
acted the same way [on other] occasions. And
that's ... another way of saying [that] this is
what the rape shield law is intended to prevent
happening. So I'm going to go ahead on those
bases to exclude [the evidence].
Having received this ruling, the defense attorney pointed
out that the court had not addressed whether the evidence was
relevant to show that Napoka might reasonably have believed that
N.A. consented to the sexual activity. Judge Curda then rejected
this second theory of admissibility:
Defense Attorney: [T]he court did not
address [my] second reason for [offering this
evidence] to show [Napoka's] own subjective
belief in her consent [because] this [was] the
exact same conduct all of those times. ...
I ought to be able to show that he subjectively
and in good faith believed that this was [all]
consensual contact between the two of them.
The Court: I find that the [statute]
covers that situation, too. [The evidence] is
not to be used even for that purpose.
As is obvious from the foregoing discussion, we conclude
that Judge Curda's ruling was error. Judge Curda adopted the
prosecutor's interpretation of the rape shield statute the view
that the statute excludes evidence of the victim's prior sexual
conduct even if that prior conduct is relevant. But, as explained
above, the rape shield statute does not exclude relevant evidence.
N.A.'s prior sexual conduct with Napoka was clearly
relevant to the two issues confronting the jury: (1) whether, as
a factual matter, N.A. consented to have sex with Napoka on the
three occasions identified in the indictment, and (2) whether, even
if N.A. did not consent, Napoka nevertheless reasonably believed
that she did consent (in other words, whether Napoka acted
"recklessly" with respect to the fact that N.A. was not consenting
to the sexual penetration). The disputed evidence was relevant, not
because it showed that N.A. had engaged in sexual activity before,
but rather because it showed that N.A. had engaged in sex with
Napoka before. If, as the defense claimed in its offer of proof,
Napoka and N.A. had a long history of consensual sex, this fact
would obviously be important to the jury's proper decision of these
two issues.
The relevance of the disputed evidence does not hinge on
any inference concerning N.A.'s character. The evidence is
important, not because of what little it may reveal about N.A.'s
willingness to engage in sexual activity in general, but because of
what it reveals about N.A.'s relationship with Napoka
specifically, her willingness to engage in sexual activity with
Napoka and how this might have influenced Napoka's perception of
whether N.A. consented to the sexual activity during the three
incidents charged in the indictment.
Judge Curda, by his ruling, excluded important evidence
from Napoka's trial evidence that was potentially exculpatory.
For this reason, and for the additional reason described in the next
section, we conclude that Napoka is entitled to a new trial.
The later ruling that barred the testimony of Olga Alexie
Judge Curda's interpretation of the rape shield statute,
and his concomitant decision to exclude all evidence of the six or
seven prior sexual contacts between N.A. and Napoka, led to a second
error later in Napoka's trial.
Obviously, the State's main contention at Napoka's trial
was that N.A. had not consented to have sex with Napoka. But a
secondary theme of the State's case, from the beginning of trial,
was that N.A. had been so upset or embarrassed about her sexual
relations with Napoka that she never told anyone about it until
Trooper LaMotte gave his lecture at her school. In his opening
statement to the jury, the prosecutor said:
Prosecutor: You're going to [hear from
N.A., who will] tell you about each and every
one of those incidents, and how, on each and
every one of those incidents, she told [Napoka]
"No, I don't want you to do this, and if you do
it again I'm going to tell people." It took
[N.A.] a little while to tell people. It
wasn't something that she was really proud of,
and it wasn't something that she talked a great
deal about. It wasn't until 1996, in March,
when Trooper Gary LaMotte went to Tuluksak to
give a talk at the school, that [N.A.] decided
to come forward with what had happened to her.
(N.A.'s testimony was actually a little different from the
prosecutor's opening statement. N.A. testified that she told a
friend about the sexual assault before she told Trooper LaMotte.
But N.A. said that her conversation with this friend, like her
conversation with Trooper LaMotte, occurred "months" after the
incidents alleged in the indictment.)
During the defense case, Napoka's attorney called Olga
Alexie to the stand. Ms. Alexie was twenty-three years old and an
acquaintance of both Napoka and N.A.. The defense attorney wanted
Alexie to describe a conversation she had had with N.A., but the
prosecutor immediately objected that the proposed testimony was
likely going to violate Judge Curda's earlier ruling excluding all
evidence of N.A.'s prior sexual activity with Napoka. Judge Curda
directed the defense attorney to make an offer of proof through voir
dire examination of Alexie outside the presence of the jury.
Alexie testified that she and another friend, Eileen
Peter, were at N.A.'s house in March or April 1993, i.e., more than
a year before the three incidents charged in the indictment. N.A.
told Alexie that she might be pregnant by Napoka. N.A. was not
crying when she said this, and N.A. never said anything about being
raped or being forced to have sex. According to Alexie, N.A.
"didn't sound upset, and she wasn't nervous or anything like that."
Arguing for the admission of this evidence, the defense
attorney pointed out that Alexie's testimony was relevant for two
purposes: first, to rebut the State's contention that N.A. was too
upset or embarrassed to tell anyone about her sexual relations with
Napoka until Trooper LaMotte's lecture; and second, to show that
N.A. acted in a way that was inconsistent with her later claim of
rape.
Defense Attorney: [Olga Alexie's account
of this conversation] is certainly
contradictory to what [N.A.] said yesterday
about not having any conversations with anybody
about her sex with [Napoka] because she did
talk to [Olga Alexie] about being concerned
that she was pregnant, [but] not about being
raped[.]
The Court: What about the pregnancy?
Defense Attorney: Just a remark; there
was no pregnancy that I'm aware of. ... I'm
not offering this to show [an actual]
pregnancy, [but] to show her state of mind.
Her state of mind wasn't the state of mind of
a person who was raped. It was the state of
mind of a person who had [had] consensual sex
and her concern at that point was whether she
might be pregnant. [T]his witness will say
that [N.A.] was concerned about having had sex
the day before ... , and that her concern was
[that] she might be pregnant."
The prosecutor objected that Alexie's testimony would
violate the protective order barring admission of evidence
concerning any prior sexual relations between Napoka and N.A. except
the three incidents named in the indictment. The prosecutor pointed
out that because the incidents named in the indictment occurred in
the summer and fall of 1994, Alexie's testimony about a conversation
in the spring of 1993 could not be admissible under the court's
protective order.
Judge Curda adopted the prosecutor's position and ruled
that Olga Alexie's testimony was inadmissible:
The Court: The court made the original
ruling under [AS] 12.45.045 regarding prior
sexual contact between Mr. Napoka and the
victim ... , and found that [their] consensual
prior sexual contact per se could not be
introduced to show that there may have been
consent on the dates in question. ... And in
order for the defense to overcome the
protective order and the rape shield act ... ,
the defense [must] tie [the offered evidence]
specifically to [one of the three] specific
instances [alleged in the indictment], which it
hasn't ... done[.]
We conclude that this ruling was error. Alexie's
testimony was clearly relevant on both of the issues identified by
the defense attorney. If Alexie's testimony was believed, N.A. was
not upset or embarrassed about her sexual relations with Napoka; she
was simply concerned that these sexual relations might have resulted
in a pregnancy. And if N.A. was not upset or embarrassed by her
sexual relations with Napoka, if she failed to mention anything
about being forced to have sex, and if her only stated concern was
that she might be pregnant, then this evidence was important to
assessing whether the three incidents of sexual penetration named
in the indictment were assaults or were consensual.
Conclusion
The trial judge's erroneous interpretation of AS 12.45.045
caused him to make two rulings that excluded potentially important
exculpatory evidence from Napoka's trial. Because this excluded
evidence might well have affected the jury's decision, we reverse
Napoka's convictions and grant him a new trial. [Fn. 12]
The judgement of the superior court is REVERSED.
FOOTNOTES
Footnote 1:
See AS 12.45.045(a).
Footnote 2:
See id.
Footnote 3:
See id.
Footnote 4:
Id.
Footnote 5:
AS 12.45.045(b).
Footnote 6:
AS 11.41.410(a).
Footnote 7:
748 P.2d 1172 (Alaska App. 1988).
Footnote 8:
Id. at 1175.
Footnote 9:
Id.
Footnote 10:
See Wood v. State, 736 P.2d 363, 365 (Alaska App. 1987).
Footnote 11:
Quoting People v. Blackburn, 128 Cal.Rptr. 864, 867 (Cal. App.
1976).
Footnote 12:
See Love v. State, 457 P.2d 622, 629-631 (Alaska 1969)
(evidentiary rulings constitute reversible error if they
substantially affected the jury's consideration of the case).
