Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Evans v. State (2/23/01) ap-1726
Evans v. State (2/23/01) ap-1726
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
MARK A. EVANS, )
) Court of Appeals No. A-7474
Appellant, ) Trial Court No. 4FA-98-4088 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1726 February 23, 2001]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Richard D. Savell, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. Douglas H. Kossler, 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.
Mark A. Evans was indicted on eleven counts of sexually
abusing a minor. He ultimately pleaded no contest to one count of
first-degree sexual abuse (Count I of the indictment), and the State
dismissed the others.
A pre-sentence report was prepared by the Department of
Corrections; this report included a lengthy description of the
criminal investigation and details of the various alleged incidents
of sexual abuse. At the sentencing hearing, Evans took the stand
and denied that he had ever sexually abused the child. Based on
this testimonial denial, Evans's attorney asked Superior Court Judge
Richard D. Savell to strike the pre-sentence report's narrative of
the investigation and its description of the various alleged
offenses. Judge Savell refused to do this, but he did make a
notation on the pre-sentence report that Evans "has denied under oath
that the [alleged instances] of sexual misconduct occurred" and that
"[e]vidence supports" many of Evans's denials.
Evans now appeals Judge Savell's refusal to redact the
pre-sentence report. He concedes that Judge Savell was entitled to
read everything in the report, but he argues that Judge Savell was
obliged to redact the report after its allegations of sexual
misconduct were challenged, so that the final copy of the report
the copy that becomes a part of Evans's Department of Corrections
file would contain no unverified allegations of misconduct.
Evans's case is controlled by Criminal Rule 32.2(a)(3) and
by our decisions in Hamilton v. State [Fn. 1] and Ashenfelter v.
State [Fn. 2].
Evans's right to seek redaction of the pre-sentence report
Alaska law gives both the State and the defendant the
opportunity to dispute "any information [contained] in the
presentence report or in any other material [that] the judge or
[the] opposing party has identified as a source of information to
be relied on at sentencing". [Fn. 3] When either party successfully
challenges allegations contained in the pre-sentence report, or when
the sentencing judge decides to leave one or more challenges
unresolved because the disputed facts make no difference to the
sentencing decision, Criminal Rule 32.2(a)(3) requires the
sentencing judge to redact the pre-sentence report:
(3) Allegations that the judge finds are
not established, or [allegations] that the judge determines will not
be considered [in the sentencing decision], shall be deleted from
the judge's copy of the presentence report. The judge shall enter
on the judge's copy of the presentence report any corrections that
[the judge] makes. The judge's corrected copy shall [then] be
designated as the "Approved Version." The judge shall send a copy
of the approved version to the Department of Corrections.
In the present case, Evans disputed essentially every
allegation of sexual misconduct contained in the pre-sentence
report. The State was therefore obliged to substantiate these
allegations (with the exception of the count to which Evans pleaded
no contest). Under Criminal Rule 32.2(a)(3), if the State failed
to substantiate the allegations, or, alternatively, if Judge Savell
concluded that there was no need to resolve the disputed
allegations, Evans was entitled to have those allegations removed
from the pre-sentence report.
As explained above, Judge Savell tried to resolve these
issues by annotating the pre-sentence report adding handwritten
comments that (1) the allegations of sexual misconduct were
contested and that (2) there was evidence to support Evans's attack
on some of these allegations. The judge's actions did not comply
with Criminal Rule 32.2(a)(3). [Fn. 4] Judge Savell was obliged
to resolve the disputed allegations or expressly declare that he did
not need to resolve them (and then order them removed from the pre-
sentence report).
Litigation of the disputed allegations of sexual
misconduct
The remaining questions in this appeal concern the
procedural rules that govern the litigation of the disputed
allegations of sexual misconduct. Our decisions in Hamilton and
Ashenfelter articulate those rules.
In Hamilton, this court adopted a rule restricting the use
of hearsay evidence at sentencing: when a defendant denies the
State's hearsay allegations under oath and submits to cross-
examination, the State is then obliged either to produce its
witnesses in court or prove that the witnesses are unavailable and
that the circumstances tend to confirm the witnesses' veracity. [Fn.
5]
In Ashenfelter, we recognized a limitation on this rule:
defendants are not entitled to deny their factual guilt of the
charges to which they have pleaded guilty or no contest. [Fn. 6]
As explained above, Evans pleaded no contest to one count of first-
degree sexual abuse of a minor (Count I of the indictment). Judge
Savell could properly disregard Evans's claim of innocence regarding
this count, even though that claim was made under oath. [Fn. 7]
Because Evans took the stand and denied all wrongdoing,
and because the State thereafter declined to present its witnesses
in court, our decisions in Hamilton and Ashenfelter require the
following result with respect to the allegations of sexual
misconduct contained in the pre-sentence report: Judge Savell was
still entitled to rely on the allegations specifically relating to
Evans's guilt of Count I, but the judge could no longer rely on the
hearsay assertions of out-of-court declarants to support the other
allegations of sexual misconduct contained in the pre-sentence
report.
The next question is whether Judge Savell heard anything
but inadmissible hearsay assertions of out-of-court declarants. He
did.
The victim's mother testified at the sentencing hearing,
so Judge Savell could rely on her testimony. And, of course, Judge
Savell could rely on Evans's own testimony.
We note, in particular, that during Evans's testimony at
the sentencing hearing, he admitted making arguably incriminatory
statements during an earlier taped telephone conversation with the
victim's mother. In this telephone conversation, Evans stated that
he had touched the victim and that the victim had touched him. (The
victim's mother also described this telephone conversation during
her testimony.) Because testimony was presented at the sentencing
hearing to support the assertion that Evans made these statements,
the Hamilton rule no longer barred Judge Savell from considering
these out-of-court statements when he resolved Evans's challenges
to the allegations of sexual misconduct contained in the pre-
sentence report.
Moreover, the Hamilton rule did not bar Judge Savell from
considering the mother's words during this earlier telephone
conversation with Evans so long as the mother's statements were not
offered for the truth of any matters asserted, but rather to provide
the context for interpreting the meaning of Evans's statements.
Offered to provide the context for Evans's statements, the mother's
statements were not hearsay. [Fn. 8]
Of course, it was up to Judge Savell to determine what
Evans's statements meant, and what events Evans was referring to.
When Evans testified about these out-of-court statements, he
insisted that he had been referring to innocent touchings that
occurred during bathing. This was an issue of fact to be resolved
by Judge Savell.
Conclusion: we remand this case to the superior court
Now that we have clarified the superior court's task and
the law governing the superior court's accomplishment of that task,
we remand Evans's case to Judge Savell. Governed by the rules
announced in Hamilton and Ashenfelter, Judge Savell should decide
whether the State has proved the disputed allegations of sexual
misconduct or, alternatively, the judge should expressly find that
the disputed allegations need not be resolved. He should then
redact the pre-sentence report in accordance with Criminal Rule
32.2(a)(3).
This case is REMANDED to the superior court for further
proceedings in conformity with this opinion. We do not retain
jurisdiction of this case.
FOOTNOTES
Footnote 1:
771 P.2d 1358 (Alaska App. 1989).
Footnote 2:
988 P.2d 120 (Alaska App. 1999).
Footnote 3:
Alaska Criminal Rule 32.1(d)(1)(B).
Footnote 4:
See Cragg v. State, 957 P.2d 1365, 1368 (Alaska App. 1998).
Footnote 5:
See Hamilton, 771 P.2d at 1362-63; Ashenfelter, 988 P.2d at
125-26.
Footnote 6:
Ashenfelter, 988 P.2d at 123 (citing Scott v. State, 928 P.2d
1234, 1238 (Alaska App. 1996)).
Footnote 7:
Id.
Footnote 8:
See Linne v. State, 674 P.2d 1345, 1356 n.8 (Alaska App. 1983).
