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Ragsdale v. State (6/1/01) ap-1746
Ragsdale v. State (6/1/01) ap-1746
NOTICE
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encouraged to bring typographical or other formal errors to the
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
BOBBY R. RAGSDALE, )
) Court of Appeals No. A-7485
Appellant, ) Trial Court No. 1KE-98-1319 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1746 June 1, 2001]
)
Appeal from the Superior Court, First Judicial
District, Ketchikan, Thomas M. Jahnke, Judge.
Appearances: David W. Rosendin, Ketchikan, 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.
Bobby R. Ragsdale was convicted of second-degree sexual
assault under AS 11.41.420(a)(3) for engaging in sexual penetration
with a woman who was so intoxicated that she was either
incapacitated or unaware of the sexual penetration.
On appeal, Ragsdale argues that the current definition of
second-degree sexual assault was enacted in violation of the Alaska
Constitution's "single subject" clause (Article II, Section 13).
Ragsdale also contends that the definition of second-degree sexual
assault is unconstitutionally vague.
In addition, Ragsdale contends that the trial judge
committed two errors that require reversal of his conviction.
Ragsdale was indicted for second-degree sexual assault under
alternative theories: that his victim was either "incapacitated"
(paragraph (3)(B) of the statute) or "unaware that a sexual act [was]
being committed" (paragraph (3)(C) of the statute). Ragsdale argues
that the jury should have been instructed that they could not
convict him unless they unanimously agreed on one (or both) of these
theories. Finally, Ragsdale contends that the trial judge committed
error when the judge ruled that a proposed expert witness offered
by the defense did not have sufficient expertise to testify.
For the reasons explained here, we reject each of these
contentions and we affirm Ragsdale's conviction.
The legislature did not violate the "single subject" clause
of the Alaska Constitution when they amended the definition of
second-degree sexual assault in 1997
As explained above, Ragsdale was charged with second-
degree sexual assault under AS 11.41.420(a)(3), which forbids sexual
penetration with a person who the defendant knows is either
"incapacitated" or "unaware that a sexual act is being committed".
The definition of "incapacitated" is codified in AS 11.41.470(2).
Prior to 1997, "incapacitated" was defined to mean:
temporarily incapable of appraising the nature
of one's own conduct and physically unable to express unwillingness
to act[.]
But in 1997, in section 7 of chapter 63 of the session laws, the
legislature amended this definition by changing the word "and" to
"or". The definition now reads:
temporarily incapable of appraising the nature
of one's own conduct or physically unable to express unwillingness
to act[.]
Ragsdale asserts that this amended definition of
"incapacitated" and, indeed, all other provisions of SLA 1997,
chapter 63 were enacted illegally. Ragsdale's argument rests on the
"single subject" provision of the Alaska Constitution.
Under Article II, Section 13 of our state constitution,
"[e]very bill shall be confined to one subject". [Fn. 1] Ragsdale
points out that SLA 1997, chapter 63 was entitled:
An act relating to the rights of crime victims
and victims of juvenile offenses; relating to the collection by
victims of restitution from prisoners; relating to the definition
of "incapacitated" for sexual offenses; creating the crime of
interfering with a report of a crime involving domestic violence;
relating to the safety of victims, other persons, and the community
in setting bail or conditions of release; relating to access to
certain records of the Violent Crimes Compensation Board; amending
Rules 6 and 43(d), Alaska Rules of Criminal Procedure, Rules 404 and
615, Alaska Rules of Evidence, and Rule 3, Alaska Delinquency Rules;
and providing for an effective date.
Ragsdale argues that a bill affecting so many provisions
of law necessarily violates the "single subject" clause. But prior
Alaska cases on this issue do not support Ragsdale's position.
The "single subject" rule was intended to prohibit
legislative "log-rolling" the practice of "inclu[ding] incongruous
and unrelated matters in the same bill in order to get support for
it which the several subjects might not separately command". [Fn.
2] But this constitutional prohibition must be construed narrowly,
tempered by "practicality and reasonableness" [Fn. 3], so as not to
unduly restrict the scope of legislation.
All that is necessary is that the act should
embrace some one general subject; and [this means], merely, that all
matters treated ... should fall under some one general idea, be so
connected with or related to each other, either logically or in
popular understanding, as to be part of, or germane to, one general
subject.
Gellert v. State, 522 P.2d 1120, 1123 (Alaska 1974).
Thus, the Alaska Supreme Court upheld an act that
contained disparate provisions all somehow related to "land". [Fn.
4] The court also upheld an act that contained various provisions
all related to "taxation". [Fn. 5] And the court upheld a voter
initiative in which all provisions were related to "transportation".
[Fn. 6]
In Galbraith v. State [Fn. 7], this court rejected a
single-subject challenge to a session law which declared that it was
addressing:
the reclassification of sexual assault in the
first degree; the rewriting of assault law to eliminate the defense
of intoxication; establishing presumptive sentences for all class
A felony offenders; the issuance of telephonic search warrants; the
modification of procedures for disposal of seized and recovered
property; the complete modification of the insanity defense; the
modification of the defense of necessity; the reclassification of
second offense joyriding; the legitimation of use immunity; and
substantial modifications to the manner in which sentences are
imposed and modified.
Galbraith, 693 P.2d at 885 n.7. Even though the only subject that
tied these strands together was a very broad one ("criminal law"),
we nevertheless upheld the challenged session law against this
constitutional attack. [Fn. 8]
Given our decision in Galbraith, and the decisions of the
supreme court on which Galbraith is based, we reject Ragsdale's
"single subject" challenge to SLA 1997, chapter 63. Thus, the
legislature lawfully enacted the 1997 amendment to the definition
of "incapacitated".
The definition of second-degree sexual assault codified
in paragraph (a)(3) of AS 11.41.420 is not
unconstitutionally vague
Under paragraph (a)(3) of AS 11.41.420, a person commits
the crime of second-degree sexual assault if they engage in sexual
penetration with another person who they know is mentally incapable,
or incapacitated, or unaware that a sexual act is being committed.
Ragsdale argues that this portion of the statute violates the
constitution because the definition of "incapacitated" is so vague
as to leave reasonable people guessing about its meaning. [Fn. 9]
Alternatively, Ragsdale argues that even if the definition of
"incapacitated" can be understood, it is fundamentally unfair to
convict a person of a felony for failing to perceive that their
sexual partner has crossed the line from "intoxicated and
uninhibited" to "intoxicated and incapacitated". In this section,
we address the alleged vagueness of the term "incapacitated".
As explained in the previous section of this opinion,
AS 11.41.470(2) defines "incapacitated" to mean "temporarily incapable
of appraising the nature of one's own conduct or physically unable
to express unwillingness to act[.]" Ragsdale contends that the
phrase "incapable of appraising the nature of one's own conduct"
embodies a concept that defies objective evaluation.
Ragsdale suggests that the task of appraising the nature
of human conduct involves "a number of levels of abstraction". He
argues that, if this task is taken seriously, very few people (if
any) can appraise the true "nature" of their conduct because they
remain unaware of their inner motivations, they do not appreciate
the impression they are making upon others, and they fail to foresee
the long-term consequences of their actions.
On a philosophical level, Ragsdale is undoubtedly correct.
But we do not think that the legislature intended its definition of
the crime to require this type of philosophical inquiry. We presume
that the legislature would share Ragsdale's view that it is almost
impossible for a person to truly assess the ultimate sources and the
ultimate consequences of their conduct. But because of this, we
further presume that the legislature did not intend to define the
crime of second-degree sexual assault in such a way as to require
an answer to this imponderable question since defining the crime
in this manner would require acquittal in all cases.
Rather, we conclude that the legislature intended the jury
to undertake a more modest inquiry. In King v. State [Fn. 10], we
addressed the meaning of the phrase "temporarily incapable of
appraising the nature of one's conduct" in the context of a second-
degree sexual assault prosecution. We declared that this phrase
required the jury to determine whether the victim was temporarily
"incapable of understanding that she was engaged in sexual
penetration with [the defendant]." [Fn. 11]
We implicitly applied this same definition in Wilson v.
State. [Fn. 12] In Wilson, the evidence showed that the victim of
the sexual assault was heavily intoxicated, to the point of passing
out. Nevertheless, we held that the evidence could not legally
support a finding of the victim's incapacity. We agreed with the
State that
even if the evidence supported a finding that
G.J. had passed out from intoxication prior to
entering Wilson's vehicle, it would not support
a finding that G.J. remained unconscious at the
time she performed fellatio on Wilson. [A
witness] testified that G.J. resisted having
her clothes removed. G.J. testified that she
resisted Wilson's assault. She testified that
she was aware of what was happening to her, and
told him "don't" during the sexual contact.
Following the assault, G.J. was coherent enough
to accurately memorize the truck's license
plate number.
In contrast, Wilson's testimony was that
G.J. verbally consented. He said that G.J. was
"coming on to" him, and that she voluntarily
removed her clothes and assisted him in the
sexual act. In his words: "She proceeded in
giving me oral sex."
[Even c]onstruing all of the testimony
most favorably to Wilson, G.J. was not
temporarily incapable of appraising the nature
of her conduct, nor was she physically unable
to express unwillingness to act.
Wilson, 670 P.2d at 1152.
We reiterate our holding in King. The question of whether
a victim was "incapacitated" for purposes of a second-degree sexual
assault prosecution is equivalent to the question of whether the
victim was temporarily incapable of understanding that they were
engaged in sexual penetration with the defendant. (Compare this
with the legislature's definition of "mentally incapable" found in
AS 11.41.470(4), which requires the jury to assess whether the
victim was "incapable of understanding the nature or consequences"
of their conduct.)
Construed in this fashion, the phrase "temporarily
incapable of appraising the nature of one's own conduct" meets the
constitutional standards for definiteness. We therefore reject
Ragsdale's attack on the constitutionality of the definition of
"incapacitated" as that term is used in the second-degree sexual
assault statute.
The definition of second-degree sexual assault codified
in paragraph (a)(3) of AS 11.41.420 does not violate the
guarantee of due process of law
As explained above, Ragsdale also argues that even if the
definition of "incapacitated" is definite enough to be
constitutional, the second-degree sexual assault statute still
denies defendants due process of law. Ragsdale contends that
morally blameless people can be convicted of this crime because the
definition of incapacity focuses solely on the victim's mental
condition and disregards the defendant's perception of the victim's
mental condition. Thus, Ragsdale argues, a person could be
convicted of second-degree sexual assault even when, despite
reasonable attentiveness and good faith, they failed to perceive
that their sexual partner's level of intoxication had crossed the
line into "incapacity" (i.e., temporary inability to comprehend that
they were engaged in sexual penetration).
Ragsdale's argument misapprehends the definition of
second-degree sexual assault under paragraph (a)(3). Under this
portion of the statute, the crime is committed if "the offender
engages in sexual penetration with a person who the offender knows
is ... incapacitated". Thus, to prove second-degree sexual assault,
the State must establish (1) that the defendant engaged in sexual
penetration with the victim, (2) that the victim was incapacitated,
and (3) that the defendant knew that the victim was incapacitated.
Under AS 11.81.900(a)(2), a defendant acts "knowingly" with
respect to a circumstance if the defendant either "is aware ... that
the circumstance exists" or "is aware of a substantial probability
[that the circumstance exists], unless the [defendant] actually
believes it does not exist". In other words, to prove second-degree
sexual assault under paragraph (a)(3) of the statute, the State is
obliged to show that the defendant knew that their sexual partner
was incapacitated or, alternatively, that the defendant was aware
of a substantial probability that their sexual partner was
incapacitated and the defendant did not actually believe otherwise
(i.e., did not actually believe that their sexual partner was
capable of understanding that they were engaged in sexual
penetration).
We therefore reject Ragsdale's due process challenge to
the definition of second-degree sexual assault.
Ragsdale's jury did not have to unanimously agree on
whether his victim was (1) incapacitated or (2) unaware that a
sexual act was being committed, so long as the jurors unanimously
agreed that at least one of these theories was proved
As noted earlier, Ragsdale was indicted for second-degree
sexual assault under alternative theories: that he engaged in
sexual penetration with a person who he knew was "incapacitated"
(paragraph (3)(B) of the statute), and that he engaged in sexual
penetration with a person who he knew was "unaware that a sexual act
[was] being committed" (paragraph (3)(C) of the statute). Ragsdale
argues that the jury should have been instructed that they could not
convict him unless they unanimously agreed on which of these
theories the State had proved.
As we recognized in King v. State, subsections 3(B) and
(3)(C) overlap; they may both apply to the same set of facts. [Fn.
13] For example, in King, we held that both subsections might be
proved if the victim was asleep during the assault. [Fn. 14] But
we concluded that this overlap "[did not] suggest that the
legislature wished one subsection to be applied to the exclusion of
the other." [Fn. 15] Thus, when a victim's unawareness of sexual
activity stems from unconsciousness or the oblivion of extreme
intoxication, a jury might lawfully conclude that both subsections
are proved.
Nevertheless, even if some or all of the jurors in
Ragsdale's case concluded that the State had proved only one of
these subsections, the jurors did not need to reach unanimous
agreement concerning which theory of prosecution was proved. A jury
ordinarily does not have to agree on a single interpretation of the
facts of a particular criminal episode. [Fn. 16] When a statute
defines two or more circumstances in which the defendant's conduct
constitutes a crime, the defendant may lawfully be convicted if each
juror concludes that at least one of these circumstances has been
proved. [Fn. 17]
We therefore conclude that Ragsdale could lawfully be
convicted of second-degree sexual assault even though the jurors may
not have reached unanimous agreement as to whether Ragsdale engaged
in sexual penetration (a) with a person who he knew was
incapacitated, or (b) with a person who he knew was unaware that
sexual penetration was occurring. The trial judge properly refused
to instruct the jurors that they must reach unanimous agreement on
this issue.
Ragsdale's jury did not have to unanimously agree on which
act of sexual penetration constituted the actus reus of his crime
In an ancillary claim, Ragsdale asserts that the jurors
may not have reached unanimous agreement regarding the act of sexual
penetration that constituted the actus reus of his crime. Ragsdale
contends that the evidence presented at his trial revealed that he
engaged in two separate acts of sexual penetration with the victim,
one when she lay underneath him and one when she was on top of him.
Ragsdale argues that the jury could not lawfully convict him unless
they reached unanimous agreement as to which of these acts of sexual
penetration constituted the actus reus of his crime.
Ragsdale did not raise this claim at trial. He must
therefore show that the trial judge's failure to instruct the jury
on this issue, sua sponte, constitutes plain error. That is,
Ragsdale must show that the trial judge's failure to instruct the
jury on this point, even without a request, was an error that would
have been obvious to any competent judge or attorney, and that this
error manifestly prejudiced the fairness of Ragsdale's trial. [Fn.
18]
The only arguable reference to two separate acts of
penetration is found in Ragsdale's testimony on direct examination.
Ragsdale testified that he first lay on top of his victim, and that
she later got on top of him. But Ragsdale testified that he did not
penetrate the victim when he lay on top of her, and that the only
act of sexual penetration occurred when she got on top of him.
Ragsdale asserted that, while this act of penetration continued,
he switched places with the victim (so that he was again on top),
but even under Ragsdale's version of events, there was still only
one act of penetration. It therefore appears extremely unlikely
that the jurors could have split on when and how penetration
occurred.
Moreover, even if the jury conceivably might have
concluded that Ragsdale penetrated his victim twice, these two acts
of penetration clearly comprised one course of conduct for purposes
of the sexual assault statute. Both were acts of genital
penetration, and they occurred within minutes of each other. They
therefore constituted one act of sexual assault. [Fn. 19]
For these reasons, Ragsdale has not shown plain error.
The trial judge did not abuse his discretion when he ruled
that Ragsdale's proposed expert witness lacked the expertise to
offer an opinion on the subject of alcoholic blackouts
Ragsdale's final claim on appeal is that the trial judge
improperly prevented him from presenting the testimony of Bruce
Dixon, an outpatient alcohol counselor. The defense offered Dixon
as an expert on the phenomenon known as "alcoholic blackout".
Ragsdale wanted to present Dixon's testimony to support the defense
theory that the victim of the sexual assault had experienced an
alcoholic blackout on the evening of the assault.
(The victim testified that she did not remember getting
into bed with Ragsdale and did not remember having sexual
intercourse with him. Ragsdale contended that the victim had
affirmatively consented to the sexual intercourse, but he suggested
that she might have been experiencing an alcoholic blackout when she
gave her consent so that she no longer remembered the incident.)
(a) Ragsdale's two offers of proof, and Dixon's
voir dire testimony
Ragsdale's attorney offered an elaborate description of
Dixon's proposed testimony. The defense attorney told Superior
Court Judge Thomas M. Jahnke that Dixon would testify (1) that
"blackout is something that sometimes happens when certain people
ingest a certain level of alcohol"; (2) that "in late-stage
alcoholics, it sometimes takes very little alcohol to go into an
alcoholic blackout"; (3) that "[even] a first-time user of alcohol
[can sometimes] go into a blackout"; (4) that "somebody in an
alcoholic blackout will have no recollection of anything that took
place while they were in the alcoholic blackout"; (5) that while a
person is in an alcoholic blackout, "they can engage in routine
activities, for example, ... driv[ing] a car [or] carry[ing] on a
conversation in [a] business meeting ... and [still] not have any
recollection at all [of these activities]"; and (6) that "even people
who know them pretty [well] won't realize that they're in an
alcoholic blackout".
The prosecutor conceded that Dixon qualified as an expert
in the field of counseling people who suffered from alcohol abuse
or alcoholism, but the prosecutor challenged Dixon's qualification
to give expert testimony on the subject of alcoholic blackout. The
prosecutor's objection led to a voir dire examination of Dixon
regarding his experience and qualifications. Dixon's voir dire
testimony failed to support the defense attorney's offer of proof.
Dixon testified that his prior knowledge of alcoholic
blackouts was limited, but he declared that he had spent some time
studying this phenomenon after Ragsdale's attorney contacted him
about testifying at Ragsdale's trial. Dixon stated that, in
response to the defense attorney's inquiry, he had spent
approximately one hour on the Internet searching for information
about alcoholic blackouts, and he had also found fifteen journal
articles that referred in some fashion to blackouts.
Dixon told the court that "a lot of [his] general training
[as an alcohol counselor] would apply to the topic of blackout."
However, Dixon qualified this statement by declaring that he had not
spent much time researching blackouts as such. Moreover, Dixon told
the court that, from what he knew, there was considerable debate
concerning the definition of "alcoholic blackout" and the nature of
this phenomenon. He stated that the etiology and characteristics
of an alcoholic blackout were "not very well established" that
"[t]here's a lot that's not known about the phenomenon of a
blackout".
Dixon told the court that he had counseled "many, many
clients" who claimed to have experienced an alcoholic blackout. But
at the same time, he informed the court that "there just has not been
a whole lot done [to study this phenomenon]. ... [I]t's not really
known exactly what the process is."
After hearing this voir dire testimony, Superior Court
Judge Thomas M. Jahnke stated that he was not inclined to allow
Dixon to testify as an expert witness on the subject of alcoholic
blackouts for three reasons. First, Judge Jahnke was concerned that
the "anecdotal evidence" of alcoholic blackouts did not sufficiently
establish that the phenomenon really occurred. Second, the judge
was not convinced that Dixon's background qualified him to give an
expert opinion on the subject of alcoholic blackouts. Third, even
assuming that Dixon was qualified to testify in a general way about
the professional debate over the source and nature of alcoholic
blackouts, Judge Jahnke was concerned that this type of testimony
would be more prejudicial than probative. He expressed concern that
Dixon's testimony would only engender confusion of the issues and
invite the jury to speculate about alcoholic blackouts when Dixon
could not provide the jurors with any objective basis for
determining whether the victim in Ragsdale's case had experienced
an alcoholic blackout.
The record supports Judge Jahnke's ruling. Dixon's voir
dire testimony failed to establish that he was competent to testify
about most of the topics mentioned by the defense attorney in his
offer of proof. In fact, Dixon essentially declared that he could
not testify about most of these topics. Dixon admitted that he had
not spent much time studying this topic. He also told the court
that the phenomenon of alcoholic blackouts was not well understood.
Dixon disclaimed any expertise on the questions of how or why
alcoholic blackouts occurred, or what their defining characteristics
were.
Later that day, the defense attorney brought Dixon back
to court for additional voir dire. At this time, Ragsdale's
attorney scaled back his offer of proof. He told Judge Jahnke that
the purpose of this voir dire was to convince the court only that
Dixon should be allowed to testify about "what an alcoholic blackout
is". The defense attorney disclaimed any intention to have Dixon
testify about "whether or not [the victim] was in an alcoholic
blackout on the day in question, or anything about this particular
case".
Dixon then testified (on voir dire) that he had consulted
twelve different books in his efforts to research alcoholic
blackouts. Two of the books did not discuss blackouts at all. Of
the remaining ten, three of the books had three or four pages
devoted to the subject, while the other seven books had only "some
reference" to the subject or offered only a definition of the term.
Dixon also testified that he had taken 500 hours of
training to become a certified alcohol counselor. According to
Dixon, four of his courses had included "some reference" to or "some
discussion" of alcoholic blackouts.
Following this supplemental voir dire, Judge Jahnke ruled
again that Dixon would not be allowed to testify. Judge Jahnke
pointed out that, under Ragsdale's new, scaled-back offer of proof,
Dixon's testimony was being offered simply as a "conduit for
[apprising the jury of] the definitions [of alcoholic blackout] that
are presented in a number of learned treatises". The judge noted
that Dixon did not claim to have expertise "in diagnosing [alcoholic]
blackout [or in] differentiating [alcoholic] blackout from other
phenomena". Thus, even if Dixon took the stand and repeated the
various textbook definitions of alcoholic blackout to the jury,
Dixon would be of no help "in explaining to the jurors what the
significance [of this evidence] might be".
(b) Judge Jahnke properly concluded that Dixon's
proposed testimony was more prejudicial than probative
Under Evidence Rule 702(a), when a litigant offers a
person as an expert witness in a particular field of knowledge, the
litigant must demonstrate that the proposed witness is qualified to
give an opinion in this field by virtue of their "knowledge, skill,
experience, training, or education". However, the Alaska Supreme
Court has clarified that "[t]he true criterion [for determining
whether a person qualifies as an expert witness] is whether the jury
can receive appreciable help from this particular person on this
particular subject." [Fn. 20]
The trial judge must determine whether the proposed
witness meets this test, and the trial judge has wide discretion on
this question. [Fn. 21] In this case, Ragsdale contends that Judge
Jahnke abused his discretion when he ruled that Dixon would not be
allowed to testify about the phenomenon of alcoholic blackout.
Ragsdale argues that Dixon's testimony would have provided
the jury appreciable assistance on the issue of alcohol's effects
on people. In particular, Ragsdale asserts that Dixon's testimony
would have been helpful to the jury regarding the possibility that
the victim in this case might have consented to have sex with
Ragsdale but was experiencing an alcoholic blackout at the time.
The record does not support Ragsdale's argument. As
explained above, Dixon did not claim to have expertise in diagnosing
alcoholic blackout in determining whether a person might have been
experiencing an alcoholic blackout based on their alcohol
consumption or their behavior. Indeed, Dixon told the court that
there was no consensus among professionals as to what caused or
indeed, what constituted an alcoholic blackout. That is, there
was no scientific agreement concerning the origin or nature of this
phenomenon.
Just as important, Ragsdale's attorney ultimately told
Judge Jahnke that he did not intend to have Dixon testify about
"whether or not [the victim in this case] was in an alcoholic
blackout on the day in question, or anything about this particular
case". Rather, the defense attorney said, Dixon was being offered
as a witness simply to establish "what an alcoholic blackout is".
Given the fact that Dixon did not claim to have any expertise
regarding the causes or the defining characteristics of alcoholic
blackout, Judge Jahnke could reasonably interpret the defense
attorney's offer of proof as a request to have Dixon take the stand
and simply repeat the definitions of "alcoholic blackout" that he
had gleaned from various texts and web sites.
From Judge Jahnke's comments, he obviously doubted whether
Evidence Rule 702(a) contemplated this type of "instant expert".
Dixon's voir dire testimony showed that he was a person who had
sufficient general knowledge of alcohol abuse and the treatment of
alcoholism to be able to research the particular topic of alcoholic
blackouts in anticipation of Ragsdale's trial. But, based on
Dixon's answers during voir dire, it is hard to tell how Dixon's
knowledge of alcoholic blackouts exceeded the knowledge that might
be gleaned on a few days' notice by any attorney or other educated
lay person who was similarly motivated to research the topic.
Even assuming that Dixon, by virtue of his prior training
as an alcoholism counselor, should have been considered an expert
on the narrow question of "what an alcoholic blackout is" i.e.,
the various (and differing) ways in which the term "alcoholic
blackout" is defined within the profession we nevertheless uphold
Judge Jahnke's decision not to allow Dixon to testify on this
subject.
As explained above, the Alaska Supreme Court has adopted
a fairly broad definition of expert witness: the test is whether
the jury can receive appreciable help from this particular person
on this particular subject. Nevertheless, the supreme court
continues to affirm the rule that a trial judge has broad discretion
in deciding whether to allow an expert witness to testify. As the
supreme court recently explained in Barrett v. Era Aviation, Inc.,
As a general rule, the trial judge retains "wide
latitude" in deciding whether to admit the
testimony of an expert witness. In Lewis v.
State[, 469 P.2d 689, 695-96 (Alaska 1970)], we
held that the test for reversible abuse of
discretion was "whether the reasons for the
exercise of discretion are clearly untenable or
unreasonable," noting that [the] reasonableness
[of the judge's decision] depended on whether
the trial judge balanced "the value of the
evidence against the danger of undue prejudice,
distraction of the jury from the issues, and
waste of time."
996 P.2d 101, 103-04 (Alaska 2000) (footnotes omitted).
In Ragsdale's case, Judge Jahnke clearly applied this
balancing test when he ruled that Dixon would not be allowed to
testify. As explained above, Judge Jahnke repeatedly expressed the
concern that Dixon's testimony would only lead the jury into
baseless speculation as to whether the victim in this case might
have experienced an alcoholic blackout. The judge pointed out that
Dixon did not claim to have expertise "in diagnosing [alcoholic]
blackout [or in] differentiating [alcoholic] blackout from other
phenomena". Thus, Judge Jahnke concluded, if Dixon was allowed to
take the stand and explain the definition of alcoholic blackout, he
would not be able to "explain[] to the jurors what the significance
[of this evidence] might be".
As we noted above, Ragsdale's attorney disclaimed any
intention of having Dixon testify about "whether or not [the victim]
was in an alcoholic blackout on the day in question, or anything
about this particular case". This being so, the only foreseeable
result of Dixon's proposed testimony would be to lead the jury into
groundless speculation. Both Evidence Rule 403 and the supreme
court's decision in Barrett call upon trial judges to prevent this
from happening, and Judge Jahnke was quite properly trying to
forestall this result in Ragsdale's case.
We therefore conclude that even if Dixon conceivably
qualified as an expert on the various definitions of "alcoholic
blackout", Judge Jahnke nevertheless did not abuse his discretion
under Evidence Rule 403 when he refused to let Dixon testify about
these definitions.
Ragsdale asserts that Judge Jahnke's ruling deprived him
of his constitutional right to present a defense. But we have
repeatedly held that a trial judge's proper application of Evidence
Rule 403 does not violate a defendant's right to present a defense
or to confront the witnesses against them. [Fn. 22] We reach the
same conclusion here.
Conclusion
The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
Two types of legislation are exempted from this requirement:
"appropriations bill[s]" and bills "codifying, revising, or
rearranging existing laws".
Footnote 2:
Suber v. Alaska State Bond Committee, 414 P.2d 546, 557 (Alaska
1966).
Footnote 3:
Van Brunt v. State, 646 P.2d 872, 874 (Alaska App. 1982)
(quoting Gellert v. State, 522 P.2d 1120, 1123 (Alaska 1974)).
Footnote 4:
See State v. First Nat'l Bank of Anchorage, 660 P.2d 406, 414-
15 (Alaska 1982).
Footnote 5:
See North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534,
544-46 (Alaska 1978).
Footnote 6:
See Yute Air Alaska, Inc. v. McAlpine, 698 P.2d 1173, 1181
(Alaska 1985).
Footnote 7:
693 P.2d 880 (Alaska App. 1985).
Footnote 8:
See id. at 886.
Footnote 9:
See Jackson v. State, 890 P.2d 587, 594 (Alaska App. 1995) (a
statute is void for vagueness "when it is so imprecise that ordinary
persons of common intelligence are left to guess at its meaning and
are apt to differ as to its scope").
Footnote 10:
978 P.2d 1278 (Alaska App. 1999).
Footnote 11:
Id. at 1280.
Footnote 12:
670 P.2d 1149 (Alaska App. 1983).
Footnote 13:
978 P.2d 1278, 1281 (Alaska App. 1999).
Footnote 14:
See id.
Footnote 15:
Id.
Footnote 16:
See Baker v. State, 905 P.2d 479, 489 (Alaska App. 1995) (in
a prosecution for robbery, the jurors did not need to unanimously
agree on whether the defendant (as opposed to one of his co-robbers)
was the one who actually struck the victim); Norris v. State, 857
P.2d 349, 354 (Alaska App. 1993) (in a prosecution for second-degree
murder, the jurors did not need to unanimously agree on whether the
defendant purposely fired his rifle at the victim or, instead,
whether the victim grabbed the pointed rifle and it discharged by
accident).
Footnote 17:
See State v. James, 698 P.2d 1161, 1165-66 (Alaska 1985) (when
"only one criminal act [is] alleged and only one incident [is]
involved", the jurors must agree that the defendant committed the
act, but they need not agree on which clause of the statute this act
violated). Some cases applying this principle are: Ward v. State,
758 P.2d 87, 92 (Alaska 1988) (jurors need not be unanimous as to
whether the defendant drove a motor vehicle while intoxicated or
drove a motor vehicle while his blood alcohol level was .10 percent
or greater); Totemoff v. State, 866 P.2d 125, 129 (Alaska App. 1993)
(jurors need not be unanimous as to whether the defendant acted as
a principal or an accomplice in the illegal taking of deer).
Footnote 18:
See Massey v. State, 771 P.2d 448, 453 (Alaska App. 1989);
Potts v. State, 712 P.2d 385, 394 n.11 (Alaska App. 1985); Carman
v. State, 658 P.2d 131, 137 (Alaska App. 1983); Marrone v. State,
653 P.2d 672, 675-681 (Alaska App. 1982).
Footnote 19:
See Erickson v. State, 950 P.2d 580, 587 (Alaska App. 1997);
Yearty v. State, 805 P.2d 987, 995 (Alaska App. 1991) (when a
defendant inflicts distinct types of sexual penetration upon a
victim during a single episode of sexual assault, each distinct type
of sexual penetration will support a separate count of sexual
assault); see also Oswald v. State, 715 P.2d 276, 280-81 (Alaska
App. 1986) (holding that two acts of genital intercourse with the
same victim would not support separate convictions for sexual abuse
of a minor unless these acts of penetration were separated by a
substantial break in time and circumstance).
Footnote 20:
Osborne v. Hurst, 947 P.2d 1356, 1362 (Alaska 1997) (quoting
Crawford v. Rogers, 406 P.2d 189, 192 (Alaska 1965)).
Footnote 21:
See Norris v. Gatts, 738 P.2d 344, 350 (Alaska 1987); Ferrell
v. Baxter, 484 P.2d 250, 267 (Alaska 1971); New v. State, 714 P.2d
378, 380 (Alaska App. 1986).
Footnote 22:
See Zeciri v. State, 779 P.2d 795, 797 (Alaska App. 1989);
Larson v. State, 656 P.2d 571, 575 (Alaska App. 1982).
