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McGill v. State (2/9/01) ap-1718
McGill v. State (2/9/01) ap-1718
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:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
TRACY J. McGILL, )
) Court of Appeals No. A-7218
Appellant, ) Trial Court No. 4FA-S97-3474 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1718 February 9, 2001]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Charles R. Pengilly, Judge.
Appearances: Susan Downie, Assistant Public
Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. Marcelle K. McDannel, 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.
STEWART, Judge.
A jury convicted Tracy J. McGill of first-degree sexual
assault. [Fn. 1] McGill argues that the superior court erroneously
admitted evidence of his prior bad acts. McGill also contends that
a jury instruction was faulty. We conclude that the superior court
did not abuse its discretion by admitting the challenged evidence,
or, at worst, committed harmless error. We further conclude that
the instruction was not an abuse of discretion. Therefore, we
affirm.
Facts and proceedings
On November 7, 1997, Priscilla Dayton called the Fairbanks
police and reported that a woman was being sexually assaulted
outside Dayton's apartment door. Fairbanks Police Officer Burlyn
Rigdon responded to Dayton's apartment complex and found McGill and
C.S. in the stairwell outside Dayton's apartment, apparently having
sexual intercourse. McGill stood when he saw Officer Rigdon and
pulled up his pants. McGill told Officer Rigdon that he and C.S.
were having sex. C.S. was crying and was "pretty hysterical."
C.S. was transported to Fairbanks Memorial Hospital where
she was examined by a nurse. The nurse found that C.S. had injuries
consistent with non-consensual sex. The grand jury indicted McGill
on one count of first-degree sexual assault.
Discussion
The admissibility of McGill's prior bad acts
C.S. testified at trial that she met Sandra Davis,
McGill's girlfriend, at a bar where they spent the evening of
November 6 drinking. C.S. also had a small amount of crack cocaine.
Not long before the 2:00 a.m. bar closing, C.S. and Davis went to
Davis's apartment. McGill arrived there a short time later, and
McGill and Davis immediately began arguing. Davis told McGill to
leave and picked up the phone, but McGill took the phone from her.
Davis left the apartment stating that she would call the police.
McGill left the apartment. C.S. followed McGill,
apparently because she had no other way to get home and wanted to
share a cab with him. McGill entered another apartment building
nearby, purportedly to use a friend's phone. After C.S. and McGill
entered the other building, McGill grabbed C.S. by the legs, pulled
her onto the stairs, and sexually assaulted her.
Dayton, whose apartment was adjacent to the stairs, heard
a woman "screaming and hollering" and hitting up against the wall.
Dayton heard the woman say "get off me" and "somebody please help."
At times the woman's voice was muffled, as if someone was covering
her mouth. Dayton also heard a male voice say "wait, wait, I'm
almost done." Dayton testified that she hesitated for a few minutes
before calling the police because she did not want to get involved.
McGill defended by claiming that C.S. consented to have
sex with him in exchange for crack cocaine. McGill called Davis to
the stand. Davis testified that after McGill arrived at her
apartment, C.S. sat on McGill's lap and kissed him. Davis said
McGill rebuffed C.S., but that C.S. persisted. Davis said she
became upset and told McGill and C.S. to leave and threatened to
call the police. McGill took the phone from her and put it outside
her door. Davis then went upstairs and asked her neighbor to call
the police.
During direct examination, McGill questioned Davis about
a domestic violence restraining order she had obtained against
McGill:
Defense attorney: Now, did Mr. McGill enter
your house without permission last year, last May I believe?
Davis: Yes.
. . . .
Defense attorney: And were you home when
this happened?
Davis: No.
Defense Attorney: Were the police called
when you got home?
Davis: Yes.
Defense Attorney: And by virtue of that incident,
did you secure what's called a domestic violence restraining order?
Davis: Yes.
. . . .
Defense Attorney: Did the order [stay] in
effect from that time through at least November?
Davis: No, I dropped it.
Defense Attorney: Do you know whether you were
successful in dropping it or
not?
Davis: Yes, I was.
The State sought to impeach Davis's credibility and
establish her bias by questioning Davis about the application she
filed in support of the restraining order. The application
described incidents where McGill had assaulted her. The State also
planned to ask about McGill's threats against Davis after she
obtained the protective order. Superior Court Judge Charles R.
Pengilly ruled that this evidence was admissible to establish
Davis's bias and attack her credibility. Judge Pengilly also ruled
that this evidence cured the impression created during Davis's
direct examination that Davis had obtained a protective order
against McGill because of one relatively benign incident of criminal
trespass. Judge Pengilly asked McGill if he wanted a limiting
instruction on the permissible use of this evidence and McGill said
that he did.
The State queried Davis about three incidents of domestic
violence by McGill that Davis described in the application for the
restraining order: the trespass in July 1997 that prompted her
request for a restraining order; her claim that in May 1997, McGill
poured beer on her, pushed her, and covered her mouth so she could
not cry for help; and her claim that in March 1997 McGill hit her,
pulled her hair, and told her to be quiet or "I'll hurt you." Davis
admitted on cross-examination that McGill had poured beer on her,
pulled her hair, and threatened to hurt her if she did not keep
quiet, but said that she either could not remember or had lied to
the police about the other incidents.
Davis also denied that she had problems with McGill after
the restraining order was issued. The State then questioned Davis
about her statements to the police that McGill had threatened her
and asked her to drop the restraining order. Davis said she did not
remember those incidents because she had been drinking. Davis did
admit, contrary to her claim on direct examination, that the
restraining order was still in effect on November 7.
McGill does not dispute that Davis's prior statements to
the police about his domestic violence were admissible under
Evidence Rule 613(a) to impeach Davis's claim that the relationship
was peaceful. But he argues that the evidence was not relevant for
two other purposes relied on by the court: to establish Davis's
bias and to correct a misleading impression created by McGill's
questioning of Davis that the restraining order was issued because
of one trespass. He also argues that the court admitted far more
detail regarding McGill's conduct than was necessary for the jury
to assess Davis's credibility, and that this additional evidence
should have been excluded as cumulative and unduly prejudicial under
Evidence Rule 403. [Fn. 2] However, the court gave the jury a
limiting instruction, as McGill had requested, on the permissible
uses of this impeachment evidence. The jury is presumed to follow
a court's limiting instruction. [Fn. 3]
Judge Pengilly could reasonably conclude that Davis's
direct testimony created a misleading view of her relationship with
McGill. Allowing the State to question Davis about McGill's
domestic violence described in the application was permissible
cross-examination to impeach Davis and explore her motivation to
fabricate. Decisions regarding the admissibility of evidence and
the scope of cross-examination are largely within a trial court's
discretion and this court will not overturn the trial court's
rulings absent an abuse of discretion. [Fn. 4] From our review of
the record, we conclude that Judge Pengilly did not abuse his
discretion when he admitted this evidence for these purposes and
provided the jury with a limiting instruction.
Judge Pengilly also ruled that, under Evidence Rule
404(b)(3), [Fn. 5] Davis could be cross-examined about another
incident Davis described in the protective order application: her
report that McGill had sexually assaulted her in 1994. Evidence
Rule 404(b)(3) permits courts to admit evidence of prior sexual
assaults in a prosecution for sexual assault if the defendant claims
the sex was consensual.
McGill contends that Evidence Rule 404(b)(3) is
unconstitutional on its face because it violates the due process
guarantee of the Alaska Constitution [Fn. 6] by permitting juries
to infer from proof of a prior sexual assault that the defendant has
a propensity to commit sexual assault. McGill also argues that
admission of propensity evidence under Rule 404(b)(3) violates his
constitutional right not to be held to answer for a crime unless it
is charged by indictment or information. [Fn. 7] McGill did not
raise these claims below, so we review them for plain error. [Fn.
8]
We have rejected similar claims in other cases. First,
in Allen v. State, [Fn. 9] we held that the admission of propensity
evidence does not per se violate due process because it is not
"invariably so prejudicial as to destroy any possibility of a fair
trial." [Fn. 10] We reasoned that judicial discretion to exclude
propensity evidence that was more prejudicial than probative was
adequate to protect defendants' due process rights. [Fn. 11] Allen
involved a constitutional challenge to Rule 404(a)(2), which permits
courts to admit evidence of a defendant's character for violence to
rebut a claim that the victim was the first aggressor. [Fn. 12] But
in Wardlow v. State, [Fn. 13] we followed our reasoning in Allen to
reject a similar due process challenge to Rule 404(b)(3). [Fn. 14]
Next, McGill claims that Rule 404(b)(3) violates his
right not to be held to answer for a crime unless it is charged by
indictment or information. We rejected that argument in Fuzzard v.
State. [Fn. 15] Although Fuzzard addressed a constitutional
challenge to Evidence Rule 404(b)(4), [Fn. 16] which allows courts
to admit evidence of prior domestic violence to show a propensity
for domestic violence, the analysis applies with equal force to Rule
404(b)(3).
Finally, McGill attacks Rule 404(b)(3) by citing State v.
Burns. [Fn. 17] In Burns, the Missouri Supreme Court invalidated
a statute that mandated admission of prior acts of child molestation
because the court ruled that the statutory mandate violated the
Missouri Constitution. [Fn. 18]
Alaska Evidence Rule 404(b)(3) does not mandate admission
of bad acts evidence. [Fn. 19] Moreover, this court has held,
unlike the Missouri high court, that the traditional ban on
propensity evidence is not rooted in the constitution, and that any
potential for abuse of character evidence can be adequately
addressed by the rules of evidence. [Fn. 20] We conclude that
McGill has not shown any error, much less plain error.
Judge Pengilly also ruled that on cross-examination, the
State could ask McGill about the same prior acts of McGill's that
the State used to impeach Davis during her cross-examination.
McGill argues that this was an abuse of discretion. However, the
State permissibly questioned Davis about these same matters to
impeach her and question her bias. Certainly, the repetition of
those points with McGill was cumulative, but even if this was an
abuse of discretion, we are satisfied from our review of the record
that any potential error would not have affected the jury's verdict.
[Fn. 21]
The court's instruction on withdrawn consent
During deliberations, the jury sent a note to Judge
Pengilly. The note asked: "While engaged in sexual penetration, if
one or another of the parties involved says 'stop,' does consent for
sex terminate at this point?" The court answered: "Consent to
sexual penetration may be withdrawn. You are reminded, however, that
all elements of Sexual Assault in the First Degree must be proven
beyond a reasonable doubt before any defendant can be convicted on
that charge." The court also directed the jury's attention to the
instructions defining the elements of first-degree sexual assault.
McGill contends that this instruction is an inaccurate
statement of our law. However, we question whether McGill
adequately preserved an objection to this instruction. When the
parties met to discuss the jury's question, the prosecutor expressed
the view that the answer to the jury's question was "yes," that
consent to sexual penetration could be withdrawn after initial
penetration. Judge Pengilly agreed with the State, but McGill
responded that he was "not sure" because he had not "had time to
research this."
Judge Pengilly responded that the law appeared to be clear
that even if there was consent initially, that consent could be
withdrawn. Judge Pengilly asked McGill if he agreed with that
proposition. McGill answered "I don't know." McGill did request
that the jury be reminded that the State had to prove all the
elements of the offense. Judge Pengilly then answered the jury's
question with the instruction described above. We conclude that
McGill's colloquy with Judge Pengilly over this instruction did not
preserve an objection. [Fn. 22]
Because McGill did not preserve an objection to this
instruction, he must show plain error. Plain error is established
if the jury instruction creates a high likelihood that the jury will
follow an erroneous theory that results in a miscarriage of justice.
[Fn. 23]
McGill cites a trio of out-of-state cases that hold that
if consent to sexual intercourse is withdrawn after sexual
penetration, that fact pattern cannot sustain a conviction for rape.
The first member of this trio is State v. Way. [Fn. 24] In Way, the
jury asked the trial court "whether consent can be withdrawn." [Fn.
25] The trial court instructed the jury that "consent initially
given could be withdrawn and if the intercourse continued through
use of force or threat of force and that the act at that point was
no longer consensual this would constitute the crime of rape." [Fn.
26] The North Carolina Supreme Court reversed and stated as
follows, without explanation or citation to authority:
If the actual penetration is accomplished
with the woman's consent, the accused is not guilty of rape,
although he may be guilty of another crime because of his subsequent
actions.[ [Fn. 27]]
The next member of the trio is Battle v. State. [Fn. 28]
In Battle, the Maryland appeals court reached the same result as in
Way, also without citing authority, by stating as follows:
Given the fact that consent must precede
penetration, it follows in our view that although a woman may have
consented to a sexual encounter, even to intercourse, if that
consent is withdrawn prior to the act of penetration, then it cannot
be said that she has consented to sexual intercourse. On the other
hand, ordinarily if she consents prior to penetration and withdraws
consent following penetration, there is no rape.[ [Fn. 29]]
The final case McGill cites is People v. Vela, [Fn. 30]
a California court of appeals case where the court reasoned that "if
consent is given at the moment of penetration, that act of
intercourse will be shielded from being a rape even if consent is
later withdrawn during the act." [Fn. 31] In reaching this
conclusion, the California court first noted that under the
California Penal Code, rape may be defined as "nonconsensual sexual
intercourse" [Fn. 32] and that "[a]ny penetration, however slight,
is sufficient to complete the crime." [Fn. 33] The court observed
that sexual intercourse with a dead person is not rape because "at
the moment of sexual penetration there is no outrage to the feelings
of the dead victim." [Fn. 34] The court then concluded that "the
essence of the crime of rape is the outrage to the person and
feelings of the female resulting from the nonconsensual violation
of her womanhood." [Fn. 35] The court opined that if a woman
withdraws consent during intercourse and the man forcibly continues
without interruption,
the female may certainly feel outrage because
of the force applied or because the male ignores her wishes, but the
sense of outrage to her person and feelings could hardly be of the
same magnitude as that resulting from an initial nonconsensual
violation of her womanhood.[ [Fn. 36]]
These cases (and their reasoning, or lack of it) have been
criticized. A recent California court of appeals decision declared
the Vela decision "unsound" because it failed to apply language in
the California Penal Code suggesting that the requirements of rape
are met not just at the moment of penetration but "as the act of
sexual intercourse is forcibly accomplished against the victim's
will." [Fn. 37] A Connecticut appeals court likewise dismissed the
Vela decision as "archaic and unrealistic," [Fn. 38] concluding from
legislative history that a similarly worded Connecticut statute
providing that "penetration, however slight, [is sufficient] to
complete ... intercourse" was not intended to mean that initial
penetration constituted intercourse, but to establish the minimum
amount of evidence necessary to prove intercourse. [Fn. 39]
The Supreme Court of Maine rejected the result in Way and
held that the language of Maine's rape statute which defines
sexual intercourse as "any penetration of the female sex organ by
the male sex organ" supports the conclusion that the continuation
of intercourse by compulsion after withdrawal of consent is rape.
[Fn. 40] The court noted that a contrary approach would defy common
sense because it would make a rape victim out of a woman whose
struggling momentarily displaced the male organ, but not out of a
woman under such compulsion by physical force or threat of serious
bodily harm that there was no possibility of withdrawal, however
brief. [Fn. 41]
Our statutes do not limit "sexual penetration" to the
moment of initial penetration. Alaska Statute 11.41.410(a) defines
first-degree sexual assault as "sexual penetration" without consent.
Alaska Statute 11.81.900(56) defines "sexual penetration" to include
genital intercourse, cunnilingus, fellatio, and anal intercourse or
an intrusion "however slight" of an object or any part of a person's
body into the genital or anal opening of another person's body.
Thus, Alaska's statutes proscribe a broader range of conduct than
genital sexual intercourse. If first-degree sexual assault hinged
on proof of non-consent to the initial sexual penetration that
is, if the victim was required at that moment to be "coerced by the
use of force ... [or] threat of death, imminent physical injury, or
kidnapping" [Fn. 42] then a defendant who penetrated a sleeping
victim but forcefully continued sexual intercourse after the victim
awoke would be guilty only of second-degree sexual assault. [Fn. 43]
Nothing in the legislative history of our statute supports
McGill's argument that once a person is sexually penetrated with
consent, that consent cannot be withdrawn. [Fn. 44] Also, the case
law McGill relies on followed the legislature's enactment of our
first-degree sexual assault statute, so the legislature could not
have considered those cases when it enacted our statute. [Fn. 45]
Furthermore, the reasoning in those cases is not persuasive. And
a view that our sexual assault statute is based on considerations
of "outrage" to a victim's "womanhood" not only represents archaic
and outmoded social conventions, but fails to recognize the much
broader range of conduct proscribed by Alaska's first-degree sexual
assault statute. Because this issue is subject to reasonable
dispute, such that competent judges and attorneys might reasonably
disagree concerning the answer, McGill has not shown plain error.
[Fn. 46]
Conclusion
The judgment of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.41.410(a).
Footnote 2:
A.R.E. 403 provides:
Although relevant, evidence may be excluded if its probative value
is outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.
Footnote 3:
See State v. McDonald, 872 P.2d 627, 654-55 (Alaska App. 1994)
(citing Whiteaker v. State, 808 P.2d 270, 277 (Alaska App. 1991)).
Footnote 4:
See Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980); Johnson
v. State, 889 P.2d 1076, 1080 (Alaska App. 1995).
Footnote 5:
A.R.E. 404(b)(3) provides:
In a prosecution for a crime of sexual assault in any degree,
evidence of other sexual assaults or attempted sexual assaults by
the defendant against the same or another person is admissible if
the defendant relies on a defense of consent. In a prosecution for
a crime of attempt to commit sexual assault in any degree, evidence
of other sexual assaults or attempted sexual assaults by the
defendant against the same or another person is admissible.
Footnote 6:
See Alaska Const. art 1, sec. 7.
Footnote 7:
See Alaska Const. art. 1, sec. 8.
Footnote 8:
See Gilbert v. State, 598 P.2d 87, 92 (Alaska 1979); (see also
Alaska R. Crim. P. 47(b) (error not brought to the attention of the
trial court will not be noticed on appeal unless it affects a
substantive right and is obviously prejudicial).
Footnote 9:
945 P.2d 1233 (Alaska App. 1997).
Footnote 10:
Id. at 1238.
Footnote 11:
See id. at 1239.
Footnote 12:
See id. at 1236.
Footnote 13:
2 P.3d 1238 (Alaska App. 2000).
Footnote 14:
See id. at 1248.
Footnote 15:
13 P.3d 1163, 1167 (Alaska App. 2000).
Footnote 16:
A.R.E. 404(b)(4) provides in part:
In a prosecution for a crime involving domestic violence or of
interfering with a report of a crime involving domestic violence,
evidence of other crimes involving domestic violence by the
defendant against the same or another person or of interfering with
a report of a crime involving domestic violence is admissible.
Footnote 17:
978 S.W.2d 759 (Mo. 1998).
Footnote 18:
See id. at 760, 762.
Footnote 19:
See Wardlow, 2 P.3d at 1248.
Footnote 20:
See Allen, 945 P.2d at 1239.
Footnote 21:
See Love v. State, 457 P.2d 622, 629-31 (Alaska 1969).
Footnote 22:
See Alaska R. Crim. P. 30(a) ("No party may assign as error any
portion of the charge [to the jury] or omission therefrom unless the
party objects thereto ... stating distinctly the matter to which the
party objects and the grounds of the objections.").
Footnote 23:
See Nelson v. State, 927 P.2d 331, 334 (Alaska App. 1996).
Footnote 24:
254 S.E.2d 760 (N.C. 1979).
Footnote 25:
Id. at 761.
Footnote 26:
Id.
Footnote 27:
Id. at 762.
Footnote 28:
414 A.2d 1266 (Md. App. 1980).
Footnote 29:
Id. at 1270.
Footnote 30:
218 Cal. Rptr. 161 (Cal. App. 1985).
Footnote 31:
Id. at 164.
Footnote 32:
Id. (citing Cal. Penal Code, sec. 261).
Footnote 33:
Id. (quoting Cal. Penal Code, sec. 263).
Footnote 34:
Id. at 164-65 (citing People v. Stanworth, 522 P.2d 1058 (Cal.
1974)).
Footnote 35:
Id. at 165.
Footnote 36:
Id.
Footnote 37:
People v. Roundtree, 91 Cal. Rptr. 2d 921, 924 (Cal. App. 2000)
(citing Cal. Penal Code sec.sec. 261, 263).
Footnote 38:
State v. Siering, 644 A.2d 958, 963 (Conn. App. 1994).
Footnote 39:
Id. at 962 n.5 (quoting Conn. Gen. Statutes sec. 53a-65(2)).
Footnote 40:
See State v. Robinson, 496 A.2d 1067, 1070-71 & n.2 (Me. 1985).
Footnote 41:
See Robinson, 496 A.2d at 1071; Siering, 644 A.2d at 962.
Footnote 42:
AS 11.41.470(8)(A) (defining "without consent").
Footnote 43:
See AS 11.41.420(a)(3)(B) (offender commits the crime of sexual
assault in the second degree by engaging in sexual penetration with
a person the offender knows to be incapacitated); King v. State, 978
P.2d 1278, 1279-80 (Alaska App. 1999) (a sleeping person is
incapacitated for purposes of second-degree sexual assault).
Footnote 44:
See 1978 Senate Journal, Supp. No. 47 at 22-23.
Footnote 45:
See ch. 166, sec. 3, SLA 1978.
Footnote 46:
See Marrone v. State, 653 P.2d 672, 676 (Alaska App. 1982).
